Plaintiffs v Other Party

1. On around 8 September 2024, Kate Goss made protected disclosures as an 'eligible whistleblower', as that expression is defined in Part 9.4AAA of the Corporations Act 2001 (Cth) ('the Act'), to John William Chung ('Mr Chung' or 'Director'), who, at that time, was one of two directors of Eratos Group Pty Ltd ('Eratos Group'). On 13 September 2024, Ms Goss was dismissed from her employment with a subsidiary of Eratos Group, Eratos (Aust) Pty Ltd ('Eratos Aust').
2. On 28 October 2024, Mr Chung, at that time the sole director of Eratos Group and Eratos Aust, resolved to place both companies in administration and appoint Mr Stephen Dixon as voluntary administrator. On 3 February 2025, both companies resolved to enter into a pooled deed of company arrangement of which Mr Chung was the proponent. This deed was executed on 24 February 2025 ('DOCA'), with Mr Dixon appointed as deed administrator ('administrator') of the companies.
3. Eratos Aust continued to trade while in administration.
4. On 21 November 2025, the administrator terminated the DOCA. Both companies were placed into liquidation, with Mr Dixon appointed as liquidator.
5. These reasons concern the disposition of two applications relating to Eratos Group and Eratos Aust (together, 'the companies').
6. The hearing of both applications took place on 16 October 2025. On 6 November 2025, the parties were informed that I anticipated delivering my reasons in relation to both applications at the end of November 2025. On Saturday, 22 November 2025, my Chambers was contacted by Ms Goss who advised by email that on Friday, 21 November 2025, the DOCA had been terminated and Mr Dixon had been appointed as liquidator of the companies. The email from Ms Goss included a request that the Court publish its reasons in relation to the two applications, notwithstanding the companies now being in liquidation. These are those reasons.
7. The first application is one dated 25 July 2025 by the administrator for orders including:

(a) an order pursuant to s 444GA(1)(b) of the Act that the administrator has leave to transfer the shares in Eratos Group in accordance with sub‑clause 7.1(b)(2) of the DOCA; and

(b) an order pursuant to s 447A(1) of the Act that the administrator has leave to execute all necessary share transfer forms and other documents ancillary to the relevant share transfer.

1. Section 444GA of the Act upon which the administrator primarily relied at the hearing is in the following terms:

(1) The administrator of a deed of company arrangement may transfer shares in the company if the administrator has obtained:

(a) the written consent of the owner of the shares; or

(b) the leave of the Court.

(2) A person is not entitled to oppose an application for leave under subsection (1) unless the person is:

(a) a member of the company; or

(b) a creditor of the company; or

(c) any other interested person; or

(d) ASIC.

(3) The Court may only give leave under subsection (1) if it is satisfied that the transfer would not unfairly prejudice the interests of members of the company.

1. The substantive orders sought by the administrator were opposed by Ms Goss. Ms Goss filed evidence and submissions and appeared on her own behalf at the hearing.
2. Having considered the evidence and the competing submissions, I am not satisfied, as required by s 444GA(3), that the transfer proposed by the administrator would not unfairly prejudice the interests of members of Eratos Group. For that reason, the application for leave by the administrator under s 444GA(1)(b) of the Act must be refused.
3. There is a second reason the application must be refused. It is because there is a discernible benefit to members from further investigations being carried out by a liquidator of the companies.
4. The second application is one made by Ms Goss, foreshadowed in an affidavit filed by her on 25 September 2025 ('First Goss Affidavit'). The disposition of that application provides a separate and independent reason why the application by the administrator must be refused.
5. In her affidavit, Ms Goss sought relief based on her status as an 'eligible whistleblower' relying on the protections available under Part 9.4AAA of the Act.
6. In her affidavit, Ms Goss sought orders including:

(a) refusal of the s 444GA application for share transfer;

(b) a permanent injunction restraining the administrator and associated parties from taking any adverse action against her in connection with her 'protected whistleblower status'; and

(c) '[m]andatory disclosure of all documents relating to the DOCA process, funding sources, beneficial interests, and any agreements with Peter Cebon or other parties'.

1. The disposition of Ms Goss' application and the matters relied on by her in opposition to the s 444GA order requires a consideration of events relating to the companies both preceding and following the appointment of Mr Dixon as voluntary administrator on 28 October 2024.
2. Having considered the evidence and submissions, I find the administrator has failed to prove that to make the order sought would not unfairly prejudice the interests of Ms Goss in her capacity as a member. For that separate reason, leave is refused to transfer the ordinary shares held by Ms Goss and/or for Velo Group Pty Ltd ('Velo Group'), a company of which Ms Goss and her husband are directors, in Eratos Group in accordance with sub‑clause 7.1(b)(2) of the DOCA.
3. Ms Goss did not file a separate formal application for injunctive relief. Consistent with the obligation imposed by s 8 of the Civil Procedure Act 2010 (Vic), there being no ambiguity in the substantive orders sought by Ms Goss and with both parties being in a position to address the issues, I decided to hear and determine Ms Goss' application on the merits at the same time as hearing and determining the administrator's application.
4. I am satisfied that to make the substantive orders sought by the administrator would be to permit the administrator to exercise a right within the meaning of s 1317AB(1)(b) of the Act, against Ms Goss on the basis of her disclosure as a whistleblower.
5. Separately, I am satisfied it is appropriate to grant injunctive relief in favour of Ms Goss pursuant to s 1317AE(1)(c) of the Act.
6. Prior to the appointment of Mr Dixon as liquidator, when well advanced in the preparation of my reasons, I was inclined to make an order pursuant to Part s 1317AE(1)(c) restraining Mr Dixon and any director or employee of Mr Dixon's firm, HM Advisory Pty Ltd ('HM Advisory'), from acting as liquidator of the companies or either of them, should one or both the companies be placed into liquidation.
7. Following the 22 November 2025 email from Ms Goss, written submissions were sought from those involved as to whether the appointment of Mr Dixon as liquidator of the companies impacted upon:

(a) the power of Court to grant the permanent injunctive relief sought by Ms Goss concerning Mr Dixon; and

(b) the exercise of the Court's discretion to grant such relief.

1. On 25 November 2025, Ms Goss provided submissions which addressed those issues.
2. No submissions were received on behalf of the liquidator. An email from the solicitors acting on his behalf, received after the receipt of submissions provided by Ms Goss, stated:

(a) is not aware of any potential claim that he, in his capacity as the liquidator of Eratos Group and Eratos (Aust), has against Ms Goss; and

(b) does not intend to take any action against Ms Goss in her capacity as an 'eligible whistleblower' under the Act.

Accordingly, Mr Dixon does not intend to make any submissions in relation to the issues raised in your email below and will be bound by any orders made by the Court in relation to Ms Goss' application.

1. Having considered the further submissions of Ms Goss, for the reasons set out below, I consider both that the Court has power to make orders pursuant to s 1317AE(1)(c) of the Act restraining Mr Dixon and any director or employee of HM Advisory from acting as liquidator of the companies, and that it is appropriate in the exercise of the Court's discretion to make such orders.
2. Pursuant to s 1317AE(1)(c) of the Act, I order that Mr Dixon, and any director or employee of HM Advisory, is hereby restrained from acting as the liquidator of the companies, or either of them.
3. I reserve liberty to both companies, to Ms Goss, Mr Chung, the Australian Taxation Office ('ATO'), as the largest unsecured creditor of Eratos Aust, and to any other interested person affected by these orders, including any creditor or shareholder of either company, to apply on 7 days' notice including for directions in relation to the appointment of a replacement liquidator to those companies or either of them.

1. At the hearing, the administrator relied on the following evidence and submissions:

(a) affidavits of the administrator sworn 25 July 2025 ('First Dixon Affidavit'), 23 September 2025 ('Second Dixon Affidavit') and 16 October 2025 ('Third Dixon Affidavit');

(b) affidavits of Mark Koroneos sworn 21 August 2025, 6 October 2025 and 16 October 2025;

(c) critical documents on the question of Ms Goss' standing provided to my Chambers on 14 October 2025;

(d) written submissions filed 6 October 2025; and

(e) oral submissions by counsel at the hearing on 16 October 2025.

1. Ms Goss relied on the following evidence and submissions:

(a) the First Goss Affidavit and affidavits of Ms Goss filed 7 October 2025 ('Second Goss Affidavit') and 14 October 2025 ('Third Goss Affidavit');

(b) critical documents on the question of Ms Goss' standing provided to my Chambers on 13 October 2025;

(c) written submissions filed 6 October 2025;

(d) oral submissions at the hearing on 16 October 2025; and

(e) further written submissions filed 25 November 2025.

1. Eratos Group was incorporated on 29 April 2019.
2. Mr Chung and Stephen Grant Taitoko ('Mr Taitoko' or 'Former Director') were appointed directors of Eratos Group upon its incorporation. Mr Taitoko ceased to be a director of Eratos Group on 18 September 2024. Mr Chung's directorship of Eratos Group continues.
3. Eratos Group had no employees when that company was placed into voluntary administration.
4. The Director's Report on Company Activities and Property ('ROCAP') did not disclose any priority employee entitlements, however, the Administrator's Report dated 24 January 2025 ('Administrator's Report') identified priority employee entitlements outstanding as of the date of appointment in the amount of $3,500 in relation to the Former Director.
5. The ROCAP did not disclose any secured creditors. It disclosed unsecured creditors of Eratos Group totalling $427,303.
6. As of the date of the Administrator's Report, the administrator had identified 12 unsecured creditors of Eratos Group in the amount of $754,036.18.
7. The ROCAP disclosed that Eratos Group operated two bank accounts with Bank Australia with a combined balance of $21,880 and that Eratos Group had an outstanding Research and Development ('R&D') tax rebate from the ATO in the amount of $89,019.
8. The ASIC extract dated 4 July 2025 exhibited to the First Dixon Affidavit records that there are 23 shareholders of Eratos Group. The 23 shareholders listed by ASIC include Velo Group as the holder of 46 shares. The list of shareholders does not include Ms Goss in her own right.
9. There is a dispute about the correct identity of the holder of the shares recorded by ASIC in the name of Velo Group.
10. It is Ms Goss' evidence that at the time of the first meeting of creditors she personally held, and continues to hold in her own name, 46 ordinary shares in Eratos Group together with 50 vested employee stock options and a further 23 unvested options under the Eratos Group's formal Employee Stock Option Plan ('ESOP'). The evidence Ms Goss relied on in that regard includes:

(a) two Share Certificates (numbered 26 and 31) issued on 30 June 2022 by Eratos Group in the name 'Kate Goss';

(b) email communications in October 2025 with Sharesies (formerly, Orchestra), the organisation that maintains the Eratos Group's share register and the statement of holding in Ms Goss' name issued by that organisation confirming that Ms Goss holds 46 shares in her own name;

(c) an email dated 24 June 2022 from Mr Taitoko, at that time the CEO of Eratos Group, with the subject 'Eratos SAFE Agreement Update'. The email concerned the conversion of SAFE to ordinary shares prior to 30 June 2022. The email was addressed to Ms Goss at kate@velogroup.com.au;

(d) an offer letter from Eratos Group to Ms Goss personally under the ESOP dated 11 October 2022 for 73 options at an exercise price of $1,374.36 per option;

(e) a deed of acceptance of the 11 October 2022 offer, executed by Ms Goss on 21 October 2022;

(f) a copy of the ESOP Rules for Eratos Group dated 1 July 2022 in which 'Eligible Person' is defined to include 'any employee ... selected by the Board to participate in the Option Plan'; and

(g) a DocuSign 'Certificate of Completion' for the ESOP offer dated 11 October 2022, recording that Ms Goss signed on 21 October 2022.

1. Based on his discussions with the Director and his review of the available books and records of Eratos Group, the administrator submitted that Ms Goss did not appear to be a member of Eratos Group and that the 46 shares she claims to be the owner of are owned by Velo Group as trustee for Velo Group Discretionary Trust.
2. The administrator submitted that Velo Group (and not Ms Goss) applied for the shares in question on 18 August 2021 and 17 November 2021.
3. The administrator gave evidence in the Third Dixon Affidavit that he was informed by the Director that the share certificates issued to Ms Goss were issued in error, and that the Sharesies platform incorrectly recorded her as the shareholder when it should have recorded Velo Group as the holder of the shares. Additionally, he gave evidence that he was informed by the Director that all relevant shareholder notices for Eratos Group had in the past been sent to Ms Goss and her husband as officers of Velo Group.
4. In support of his submissions, the administrator relied on a number of matters including:

(a) the historical ASIC search for Eratos Group, where Ms Goss is not listed as a shareholder;

(b) the Form 484 lodged 28 July 2022 which states that Velo Group became a shareholder of Eratos Group as at 30 June 2022; and

(c) the Eratos Group Capitalisation table which refers to Velo Group as a shareholder with 46 shares and lists Ms Goss as the contact.

1. In her submissions, Ms Goss asserted that the 46 Eratos Group shares are held by her personally. The shares are registered in her name as per the share certificates issued by Eratos Group and as per the share registry records. She submitted that any historical reference to 'Velo Group' was an administrative error by the directors, which Ms Goss requested be corrected in an email to the Director dated 16 September 2024. Ms Goss submitted that the directors failed to correct this error and instead systematically concealed her from all DOCA documentation presented to creditors.
2. While in written submissions the administrator disputed that Ms Goss had standing, at the hearing it was accepted by him that Ms Goss and/or Velo Group is a shareholder in Eratos Group.
3. Based in particular on the share certificates and share registry documents relied on by Ms Goss, I find that Ms Goss personally holds, and at all relevant times held, 46 shares in Eratos Group in her own name. In addition, she is the holder of 73 options (50 vested; 23 unvested).
4. Although the ASIC records refer to Velo Group as the holder of the 46 shares, I accept Ms Goss' evidence that she notified Eratos Group that the ASIC record was incorrect and sought a correction of that record in September 2024.
5. As submitted by Ms Goss, while at no point in the Administrator's Report to creditors did Mr Dixon refer to the ESOP or to share options issued pursuant to the ESOP, I do not consider the evidence goes so far as to support a 'deliberate concealment' finding, as submitted by Ms Goss to be the case.
6. The evidence does not include a list of the persons who hold or have an entitlement to hold shares in Eratos Group pursuant to the ESOP. The DOCA makes no reference to such shares or entitlements and is silent about what is to occur to them if the administrator's application for the transfer of shares were to be granted.

1. Eratos Aust is a wholly-owned subsidiary of Eratos Group. Eratos Aust was incorporated on 11 March 2021. It is a trading entity that provides software and consulting services.
2. Mr Chung and Mr Taitoko were appointed directors of Eratos Aust upon its incorporation. Mr Chung ceased to be a director of Eratos Aust on 1 July 2023. Mr Taitoko ceased to be a director of Eratos Aust on 27 October 2024 at which time Mr Chung was reappointed as a director. Mr Chung remains the sole director of Eratos Aust.
3. The administrator has given evidence that Eratos Aust had 13 employees as at 25 July 2025.
4. The Director's ROCAP disclosed outstanding employee entitlements owed by Eratos Aust totalling $89,023. The administrator reported outstanding employee entitlements in the amount of $166,221, consisting of $147,108 in wages and superannuation and $19,113 in unpaid annual and long service leave.
5. The evidence of Ms Goss reveals that she and her husband were priority creditors of Eratos Aust for unpaid superannuation with $5,371.55 owed to Ms Goss and $6,879.07 owed to Mr Goss.
6. The Director's ROCAP disclosed three debtors totalling $337,781, however, the administrator identified debtors totalling $143,116 and pre-appointment debtors totalling $138,384. The administrator expressed his belief that this discrepancy was due to the Director's balance also including administration debtors.
7. No secured creditors of Eratos Aust were disclosed in the Director's ROCAP. There were stated to be 16 unsecured creditors totalling $208,353. This amount differs from the amount identified by the administrator, who identified 15 unsecured creditors of Eratos Aust including the ATO totalling $1,048,418.
8. The Director's ROCAP disclosed that Eratos Aust held two bank accounts with Bank Australia and Airwallex with combined funds in the amount of $53,863. However, following Mr Dixon's appointment as voluntary administrator, a notification received from Bank Australia only disclosed one account in the name of Eratos Aust holding a credit balance of $15,457. When the balance of funds was transferred to the Administration account, the account held a credit balance of $52,476 due to the subsequent receipt of debtor payments.

1. There are at least two other subsidiaries of Eratos Group. Those companies are Eratos (NZ) Pty Ltd ('Eratos (NZ)') and Eratos Labs Pty Ltd (in liquidation) ('Eratos Labs').
2. The administrator was appointed as liquidator of Eratos Labs on 12 December 2024.
3. The Terms Sheet outlining the proposal for the DOCA for consideration at the second creditors' meeting stated the intention of Mr Chung, the Deed Proponent, for Eratos Group to acquire the intellectual property rights from Eratos Labs for a consideration of approximately $10,000 (or any other sum deemed appropriate by the parties to the transaction).

1. On 28 October 2024, Mr Chung resolved to place Eratos Group and Eratos Aust into administration. On the same day, Mr Dixon was appointed as the voluntary administrator of both companies.
2. At the date of the administrator's appointment, a search of the Personal Property Securities Register database disclosed two security interests registered against Eratos Aust, both of which had been discharged:

1. The date and circumstances of the discharge of those security interests are not elaborated upon in the Administrator's Report or elsewhere in the evidence.
2. The first meeting of creditors of the companies was held concurrently on 8 November 2024. At that meeting, the creditors did not resolve to replace the administrator as Administrator of the companies.

1. In his Administrator's Report dated 24 January 2025, the administrator summarised the estimated return to creditors of the two competing DOCA proposals, at that time anticipated to be available for consideration at the second creditors' meeting, and the estimated return to creditors in a liquidation scenario.

Pooled DOCA - PC (Peter Cebon and others)

1. The administrator expanded upon his assessment of the likely return to creditors from the competing DOCA proposals and in a liquidation later in his report:

Estimated Funds Available for Priority Creditors

Estimated Return to Priority Creditors (cents in the dollar)

Amount Available After Payment of Priority Employee Creditors

Estimated Return to Creditors (cents in the dollar)

Deed Administrator's / Trustee's Remuneration (est.)

Estimated Funds Available for Priority Creditors

Estimated Return to Priority Creditors (cents in the Dollar)

Amount Available After Payment of Priority Employee Creditors

Estimated Return to Creditors (cents in the dollar)

Estimated Return to Creditors Excluding Related Unsecured Creditors (Director)

1. In the executive summary section of his report, the administrator made the following recommendations:

Based on my comparison of the key features of the two (2) DOCA proposals as detailed in Section 8.2 of this Report, it is my opinion that the Companies execute the proposed DOCA by the Director (DOCA - JC) as it is the best option available to the creditors of the Companies, as it provides a more timely and assured return to the unsecured creditors of the Company.

The conditions precedent in the competing DOCA proposal submitted by Mr Cebon and others (DOCA - PC) provides limited assurance and uncertainty to creditors that the DOCA will be able to be executed. In addition, there is uncertainty for creditors as the quantum and timing of the return to creditors as to the proposal is contingent on the projected revenue of the Companies for a period of up to five (5) years.

My reasons for this recommendation are explained in Section 10 of this Report.

A dividend to unsecured creditors in a liquidation scenario will be dependent upon the successful recovery actions that may be available to the Liquidator pursuant to Part 5.7B of the Act. Detailed investigations are required into the specific transactions of the Companies to determine the commerciality of potential recoveries identified and whether there will be a net benefit to creditors with respect to any recovery actions.

D.2 Previous trading and financial performance

1. The administrator reported that externally prepared financial statements were available and obtained for the FYE 2021, 2022 and 2023 for Eratos Group. Externally prepared financial statements for Eratos Aust were provided to the administrator for FYE 2022, but not for the FYE 2023 or FYE 2024 years. The administrator included the following summaries in his report:

Eratos Group - Statement of Financial Position

Eratos Aust - Statement of Financial Position

1. The Administrator's Report revealed net related party loans outstanding to Eratos Group in the amount of $1,517,327, comprising:

(a) ($85,754), being a loan to Eratos Aust;

(b) $123,133, being a loan to Eratos (NZ); and

(c) $1,479,948, being a loan to Eratos Labs.

1. Sections 4.2.7 and 4.2.8 of the Administrator's Report state as follows concerning Eratos Aust:

Eratos (Aust)'s management accounts recorded the following related party loans:

Eratos Group and Eratos Labs are presently insolvent and I have been appointed Administrator and Liquidator respectively to these Companies. No recovery of these loans are expected. As stated in Section 4.2.3 of the Report, Eratos (NZ) is a dormant company and does not hold any assets. Accordingly, no recovery of this loan is expected.

Furthermore, the Company's Director has submitted a proposal for a Pooled DOCA. If accepted by creditors the assets and liabilities of the Companies will be pooled, and any intercompany receivables and liabilities will, as a function of the Pooled DOCA, not be recoverable or payable.

4.2.8 Tax Liabilities

Eratos (Aust)'s management accounts recorded the following tax liabilities:

Eratos (Aust)'s statutory tax liabilities, as recorded in its Xero management accounts, comprise unpaid PAYG and GST. The tax liabilities have increased over the periods reviewed.

On 16 January 2025, the ATO submitted a POD in the amount of $853,093 in relation to the RBA deficit. The POD did not list any outstanding SGC.

1. The administrator reported that in the period leading up to his appointment, a number of statutory demands and notices were issued concerning Eratos Aust:

(a) on 22 February 2024, the ATO issued a statutory demand on Eratos Aust;

(b) on 6 September 2024, Think & Grow issued a notice of intention to sue on Eratos Aust;

(c) on 17 September 2024, the Velo Group issued a statutory demand on Eratos Aust; and

(d) on 8 October 2024, the ATO issued a Director Penalty Notice to the Director.

1. There was no extant winding up application in relation to either company at the time the administrator was appointed.
2. The administrator reported that Eratos Group may have been insolvent from at least 30 June 2022 and that Eratos Aust may have been insolvent from at least April 2023, if not earlier.
3. Based on his preliminary investigations, the administrator reported that he was not able to determine with certainty whether there was a viable insolvent trading claim against either the Director or Former Director, or any other potential recovery actions.
4. The administrator cautioned that pursuing compensation from a director is contingent upon the director's personal financial position. He reported that his preliminary searches of the Director and Former Director, utilising public databases, had not identified any real property in their names. He reported that if the companies were to be placed into liquidation, the Director and the Former Director would be requested to provide a statement detailing their financial position including personal assets and liabilities.
5. The administrator expressed his opinion that it is in the best interests of the creditors of the companies to execute the deed of company arrangement proposed by the Director. This was on the basis that the Director DOCA Proposal would provide a more timely and assured return to the unsecured creditors of the companies, and that entering liquidation would not be in the best interests of the unsecured creditors.
6. Although the administrator considered the potential for proceedings against the Director and Former Director, he did not identify any matters or actions which required him to lodge a report with ASIC pursuant to s 438D of the Act.

1. The administrator reported that the Director attributed the companies' financial difficulties to the alleged mismanagement of the business by the Former Director and the use of company funds for the alleged payment of personal and non-related business expenses by the Former Director. This alleged mismanagement left the companies with cash flow difficulties and accumulated debt owing to the ATO and other creditors.
2. While not reported on by the administrator, the issues concerning mismanagement by the Former Director were the subject of protected disclosure by Ms Goss as an 'eligible whistleblower' to Mr Chung, the Director, as an 'eligible recipient' falling within Part 9.4AAA of the Act.
3. The administrator reported that he had identified transactions totalling $215,110 that may prima facie be considered unreasonable director related transactions pursuant to s 588FDA of the Act relating to expenditure on flights, accommodation, transport and restaurants.
4. The Eratos Aust management accounts recorded tax liabilities of $896,503, which increased over the period reviewed, including $679,137 on an integrated account and $177,243 PAYG withholding payable.
5. The administrator reported that the Director also cited the dysfunction and disagreements between the shareholders and management as contributing to the companies' financial difficulties.
6. Whilst the administrator noted that further investigations were required to corroborate the statements made by the Director concerning the financial difficulties of the companies, he agreed with the view that the financial difficulties could be attributed to poor strategic management of the businesses, particularly with respect to commencing two new entities, 'Eratos Labs' and 'Eratos Ventures', and loaning those entities company funds when the funds were required to ensure compliance with ongoing statutory obligations. This resulted in cash flow difficulties for Eratos Aust.
7. The administrator reported that the presence of a significant statutory tax debt with respect to unpaid GST and PAYG for Eratos Aust, amongst other liabilities, 'suggested' that the companies did not generate sufficient revenue to enable them to discharge these statutory obligations as and when they fell due and payable.

1. The concurrent second meeting of creditors of Eratos Group and Eratos Aust ('second creditors' meeting') was held on 3 February 2025, after the convening period was extended on three occasions pursuant to orders made by Gardiner AsJ. The Administrator's Report was tabled at the second creditors' meeting.
2. As earlier mentioned, prior to the second creditors' meeting, there were two proposed pooled deeds of company arrangement:

(a) one proposed by the Director of the companies, Mr Chung ('Director DOCA Proposal'); and

(b) one proposed by Mr Peter Cebon, Gowing Bros Pty Ltd, Mr George Strintzos, Mr Keith Strintzos and Ms Susan West, persons who are either directly or indirectly (via entities associated with them) shareholders in Eratos Group ('Cebon DOCA Proposal').

1. As reported in the Administrator's Report, the Cebon DOCA Proposal was conditional. It was subject to a due diligence period and the development of a business plan. While it proposed a far greater return to creditors than the Director DOCA Proposal, 82.46 cents in the dollar to all unsecured creditors, there were material uncertainties, including that apart from an initial contribution of $300,000, the remainder of the funds to pay creditors were dependent on and proposed to be paid out of future revenue of the companies over 5 years.
2. The Cebon DOCA Proposal was withdrawn prior to the commencement of the second creditors' meeting. The evidence does not include a detailed account of why or in what circumstances the Cebon DOCA Proposal was withdrawn.
3. At the second creditors' meeting, the administrator recommended that the creditors resolve to execute the Director DOCA Proposal for the reasons that it provided a greater return than the potential return in a liquidation scenario, it maintains the employment of the employees and preserves the business of Eratos Aust. The administrator reported his view that if the companies were put into liquidation, both priority and unsecured creditors would receive a nil return.
4. In her written submissions, Ms Goss referred to the minutes of the second creditors' meeting and to evidence upon which she relied concerning that meeting. In particular:

(a) as recorded in the minutes, Ms Goss challenged the proposed cancellation of her shares pursuant to the terms of the Directors DOCA Proposal;

(b) upon this issue being raised, the administrator and the Deed Proponent, the Director, as recorded in evidence relied on by Ms Goss, left the meeting for a private discussion (not recorded in the minutes);

(c) following their return, the Director said he would respond to Ms Goss within 21 days concerning whether he would reconsider the proposal to cancel her shares in the Director DOCA Proposal;

(d) following that discussion, votes were taken regarding entry into the Director DOCA Proposal;

(i) Eratos Group creditors voted 7 for and 1 against the proposed resolution that the Director DOCA Proposal be executed. In terms of value of creditors, $501,876.44 voted in favour of execution and $91,242.97 (the ATO) voted against;

(ii) Eratos Aust creditors voted 17 for and 1 against, with 3 abstaining. In terms of value of creditors, $853,093.28 (the ATO) voted against, $235,247.54 voted in favour and $28,090.62 in value abstained; and

(e) as recorded in the minutes, the administrator as Chairperson declared no result had been reached in relation to Eratos Aust as a majority of creditors in value had voted against the resolution. He stated that he would exercise his casting vote pursuant to r 75-115(3) of the Insolvency Practice Rules (Corporations) 2016 (Cth) ('Insolvency Practice Rules') in favour of authorising Eratos Aust to execute the Director DOCA Proposal.

1. The resolution that Eratos Aust enter the Director DOCA Proposal was passed as a result of the administrator exercising his casting vote pursuant to r 75‑115(3).

1. The DOCA was executed on 24 February 2025 by the companies, the administrator and the Director.
2. Key aspects of the DOCA include implementing a new share capital and corporate governance structure and utilising a creditors' trust to facilitate the determination of creditors' claims and any consequent distributions.
3. Clause 9 of the DOCA establishes a Deed Fund, the contents of which are to be transferred to the trustee of the Eratos Creditors' Trust, being the deed administrator, Mr Dixon, to be held on trust for the benefit of the Admitted Creditors, being those creditors the trustee has determined shall be admitted to claim against the trust.
4. The DOCA provides for the assets and liabilities of both companies to be pooled. Any inter-company receivables and liabilities, including from Eratos Labs will, as a function of the pooled DOCA, not be recoverable or payable.
5. The DOCA provides for the payment of $600,000, the Contribution Sum, to be paid by 24 monthly instalments into a Creditors Trust Fund to be administered by the administrator. There is no enforceable personal obligation or guarantee provided by the Director, or by any other person, to secure the obligation that the payments required to make up the Contribution Sum will be made.
6. Clause 2.2 provides that the purposes of the DOCA include to:

(a) compromise and release the Claims of all Participating Creditors against the Companies in exchange for the opportunity to make a claim in accordance with the terms of the Eratos Creditors' Trust Deed against the Trust Fund in an amount equal to the value of their Claim; > > (b) maximise the chances of the Companies, or as much as possible of its businesses, continuing in existence; and > > (c) provide unsecured Creditors with Claims with a better return than would result from the immediate winding up of the Companies.

7. Clause 7.1 provides that the effectuation of the DOCA is subject to the following conditions precedent:

(a) by no later than 60 days from the Commencement Date, the parties to this Deed implementing the corporate governance structure of the Companies as proposed in the Annexure C of the DOCA Proposal; > > (b) by no later than 60 days after the Commencement Date, the [Administrator]:

(1) obtaining the written consent of each of the Members of Eratos Group to transfer all of the shares of Eratos Group on an unencumbered basis to the Target Members or their nominee for no consideration (and otherwise on terms reasonably acceptable to the Proponent); or

(2) making application for the leave of the Court to transfer all of the issued shares of Eratos Group on an unencumbered basis to the Target Members or their nominee for no consideration (and otherwise on terms reasonably acceptable to the Proponent).

1. Clause 7.2 provides that the administrator may extend the date by which the conditions precedent are required to be satisfied. This later occurred.
2. Clauses 7.3 and 14 provide that where the conditions precedent, or any of them, are not satisfied by the required date, the DOCA will automatically terminate. Should those circumstances occur, the administrator may determine that the companies will be taken to have passed special resolutions that they be voluntarily wound up and that the administrator will be the companies' liquidator.
3. Under the DOCA, each of the existing members' shareholding in Eratos Group is to increase by 72%. That is the case except for the shareholdings of those persons, including Ms Goss, whose shareholdings are each to be reduced to zero without payment and who are excluded from the Target Members as defined in the DOCA.
4. The following table annexed to the administrator's submissions filed 6 October 2025, also found in Annexure C to the Director DOCA Proposal, shows what the administrator understands to be the existing shareholders in Eratos Group and the DOCA 'adjusted shareholding' (being the shareholdings contemplated by the DOCA, the compulsory transfers of which are the subject of the administrator's application):

Company Shareholders and DOCA Adjusted shareholding

N & V Strintzos Superannuation Fund No 2 Pty Ltd

1. As appears from the table, if the orders proposed by the administrator were to be made, with three exceptions, all existing shareholders listed in the table, being the 'Target Shareholders', will hold a greater number of shares than was the case prior to the appointment of the administrator.
2. The three shareholders who are omitted from the Target Shareholders for which the DOCA makes provision, and whose shares are to be transferred for no payment and who cease to hold any interest in the companies if the administrator's application is acceded to are:

(a) Ludanevia Pty Ltd, a company associated with Mr Taitoko;

(b) Peter Cebon; and

(c) Ms Goss (whose shares are referred to in the table as shares held by Velo Group).

1. The following explanation is provided in the DOCA concerning why each of these persons is to have their existing shareholding reduced to zero in return for nil consideration.

Certain Eratos shareholders were directly involved in the leadership of the company during the period leading up to its Voluntary Administration, or maintain close associations with that former leadership team. We, therefore, believe that the continued involvement of these shareholders in Eratos is incompatible with the above requirements. Accordingly, we seek to amend shareholdings as outlined in the Target State Term Sheet and Schedule 2: Target Shareholdings.

Transferring shares away from these shareholders is both necessary and prudent to ensure the company's viability under the proposed DOCA and to maximise creditor returns. The only credible alternative to the proposed DOCA is liquidation, in which case (i) unsecured creditors are likely to receive 1-2 cents on the dollar; (ii) all company shares would have no residual value and all shareholder value would be destroyed.

1. On 27 March 2025, the administrator wrote to all shareholders of Eratos Group requesting consent to transfer all of the shares in Eratos Group on an unencumbered basis to the Target Members (as that term is defined in the DOCA) or their nominee for no consideration. The letter notified shareholders that in the event that consent was not obtained, the administrator intended to file an application for leave of the Court to effect the transfer, pursuant to clause 7 of the DOCA.
2. Of the 23 shareholders listed in the table, as at 25 July 2025, only three shareholders had responded to the 27 March 2025 letter: two provided their consent and Ms Goss refused to consent. It appears that all other shareholders, including Ludanevia Pty Ltd and Peter Cebon, did not respond to the letter.
3. It appears consistent with the explanation in the DOCA that Ludanevia Pty Ltd, a company associated with Mr Taitoko, one of the founders of Eratos Group, previously a major shareholder and 'a person directly involved in the leadership of the company during the period leading up to Voluntary Administration', should forfeit its shares. The second creditors' meeting minutes record Mr Taitoko's opposition to the Director DOCA Proposal and his threat of legal action should he receive nothing in return for forfeiting his shares.
4. Mr Cebon was a proponent of the Cebon DOCA Proposal. The evidence does not explain what leadership role, if any, Mr Cebon performed in the companies prior to them being placed in voluntary administration. There is nothing to suggest he performed such a role. The 'justification' for forfeiture of shares associated with Mr Taitoko referred to in the DOCA does not appear to apply to Mr Cebon.
5. The evidence is silent about whether Mr Cebon or any person or entity on his behalf is to receive any of the Target Member shares (the DOCA permits transfer to nominees) or other benefits if the relief sought by the administrator is obtained, as Ms Goss is suspicious is the case. There is no evidence of any 'side deal' pursuant to which Mr Cebon or an entity associated with him is to be, or has been nominated to, receive some of the shares or some other benefit or consideration should the transfer order proposed be made, in exchange for the earlier withdrawal of the Cebon DOCA Proposal.
6. There is no evidence that Ms Goss 'was directly involved in the leadership of the company during the period leading up to its Voluntary Administration'. She was never a director. Her employment was terminated on 13 September 2024. The companies were placed into voluntary administration on 28 October 2024. There is no evidence that Ms Goss 'maintain[s] close associations with [the] former leadership team'. The opposite is the case. Ms Goss submits that the proposal in the DOCA to reduce her shareholding to zero is a response to her whistleblowing in respect of the two companies. The reasons relied on in the DOCA to justify the forfeiture of shares are not apt to describe Ms Goss' role or involvement in the companies.

G Events since the second creditors' meeting

1. Following his appointment on 28 October 2024, the administrator continued to trade the business of Eratos Aust. He continued to do so as at the date of the hearing. Eratos Group is not a trading entity.
2. As at 23 September 2025, $60,000 had been contributed by the Deed Proponent. The August 2025 instalment was not paid as required by the DOCA. The Creditors Trust Fund had not been established by that time, as the transfer of the shares the subject of the administrator's application is a condition precedent to that fund coming into existence.
3. The Eratos Aust balance sheet as at 30 June 2025 and profit and loss statement for the year ended 30 June 2025, a period that includes both pre- and post‑appointment, formed part of the evidence.
4. The balance sheet of Eratos Aust as at 30 June 2025 is as set out below:

Less Accumulated Depreciation on Computer Equipment

Loan - Hamilton Murphy Debtor Payments (invoiced 28/10/24-23/2/25)

1. The liabilities of Eratos Aust included in the balance sheet as at 30 June 2025 show that approximately $380,000 was invoiced to 'Hamilton Murphy', being the administrator's firm, and that there was an ostensible loan from Hamilton Murphy for approximately $530,000. These two entries are not explained in the evidence and were not addressed in submissions.
2. The entries in the Eratos Aust balance sheet for 'lines of credit' from Jack Rejtman, John Dummett, McMonagle Victoria Pty Ltd and Quinten Van Der Leest appear to relate to the funding of Eratos Aust whilst trading in administration. As with the Hamilton Murphy payments, no explanation was provided in relation to these entries in the balance sheet.
3. The profit and loss statement for Eratos Aust for the year ending 30 June 2025 is as set out below:

1. No separate profit and loss statement for Eratos Aust for the period that company traded while in administration, whether until 30 June 2025 or to the end of the most recent quarter, 30 September 2025, and no separate balance sheet for either of those periods that shows clearly how the ongoing trading of the business in administration was funded, is included in the evidence relied on by the administrator.
2. In the Second Dixon Affidavit, Mr Dixon gave evidence that the Director has provided him with projections for the period ending December 2025 that indicate a net trading deficiency will be incurred from trading in the ordinary course of business. Those projections are not exhibited to Mr Dixon's affidavit.
3. The administrator also gave evidence in the Second Dixon Affidavit that:

(a) the Director has advised that Eratos Aust is reliant on an R&D tax rebate to be submitted and received to allow it to have the required cashflow to meet its ongoing trading obligations. It is estimated that the tax rebate to be sought will be $549,000 and it will be submitted in on or around the end of September 2025;

(b) the Balance Sheets and Profit and Loss Statements for the year ended 30 June 2025 for the companies show that Eratos Aust has an equity deficiency and has traded at a trading loss for the period to 30 June 2025;

(c) three employees have agreed, by mutual agreement, to take unpaid leave as Eratos Aust does not have the ongoing cash flow to meet its overhead obligations. The balance of the employees, totalling nine, have agreed to receive a reduced salary of approximately 50%;

(d) Eratos Aust intends to vacate its trading premises from 1 November 2025 in an effort to reduce overheads and all staff will be working remotely;

(e) a major debtor during the administration period of the companies did not proceed with additional work valued at $292,000, stating that the work cannot proceed due to the company's registration status. The debtor has indicated that it will engage Eratos Aust on a fee for service basis and will not enter into a new contract until this issue is resolved; and

(f) several clients of the companies, including both corporate and government funded institutions, are not willing to engage the business to provide services whilst the companies are in external administration.

1. Two emails from customers of the business were exhibited to the Second Dixon Affidavit in support of the application. One is from a person apparently employed by Charles Sturt University ('CSU') to Mr Rejtman, the CEO of Eratos Aust, and to the Director, dated 1 September 2025. The other is from Joshua McMonagle, executive director of AIXI Projects, to Mr Rejtman, and is dated 29 August 2025. The thrust of both emails is to express concern about the ongoing uncertainty for the business and reluctance to commit to further orders for new work until the status of the companies is resolved.
2. The circumstances in which the emails were provided is not explained in the evidence. However, the email in response from Mr Rejtman to Mr Pagett at CSU begins: 'Thanks for again flagging your concern, Nick'. A McMonagle company is a large existing and proposed to be 'Target Member' shareholder, as the proposed holder of 37.76% of shares in the restructured Eratos Group under the DOCA. It may safely be inferred that both emails have been procured by those associated with the administrator's application with a view to supporting the orders contended for.
3. The balance sheet as at 30 June 2025 for Eratos Group provides:

1. The Eratos Group profit and loss statement for the period ending 30 June 2025 is as follows:

1. The Second Dixon Affidavit includes the following statement:

[T]he Director [Mr Chung] has advised me that Eratos (Aust) is reliant on a research and development tax rebate to be submitted and received to allow it to have the required cashflow to meet its ongoing trading obligations. It is estimated that the tax rebate to be sought will be $549,000 and it will be submitted in on or around the end of September 2025 ...

1. The Second Dixon Affidavit contains the first and only reference to this R&D tax rebate of $549,000 in the evidence. This R&D tax rebate is not referred to in the Administrator's Report.
2. Section 4.3.1 of the Administrator's Report includes a statement that Eratos Group claimed government grants and research and development offsets. Section 5.2.2 of the Administrator's Report refers to disclosure by Eratos Group of an outstanding R&D tax rebate from the ATO in the amount of $89,019 and the receipt by the administrator of $91,013 on 17 November 2024 of an R&D tax rebate. That amount is included in the Eratos Group Receivables, and used as part of the nil return to creditors calculation in a liquidation scenario in the table reproduced at paragraph 65 above.
3. The Statement of Financial Performance for Eratos Group, summarised in the Administrator's Report, recorded R&D expenses of $33,701 in the YTD2025 and no expenditure in this category in FYE2024. The financial statements of Eratos Aust summarised in the report do not include an R&D expense category.
4. There is no information in the accounts or the Administrator's Report which explains the R&D tax rebate of $549,000, the claim for which is to be submitted 'around the end of September 2025'. No update as to the status of the claim was provided at the hearing.

1. The administrator submitted that it is appropriate for the Court to exercise its discretion to make orders facilitating the transfer of the shares in Eratos Group for the following reasons:

(a) the Director DOCA Proposal maximises the chances of a return to creditors;

(b) if the transfer of shares is not approved, the DOCA cannot be effectuated and will likely be terminated, resulting in the companies being placed into liquidation. In a winding up, unsecured creditors of the companies are expected to receive nil cents in the dollar and members would receive no return. This is in contrast to the situation under the DOCA, where priority creditors are expected to receive 100 cents in the dollar and the unsecured credits will receive 28.69 cents in the dollar;

(c) Ms Goss' complaints in relation to her alleged status of a 'protected whistle blower' and how the meeting of creditors was conducted are immaterial to the Court determining whether leave should be granted;

(d) excluding Ms Goss, no other shareholder has sought to be heard regarding the application;

(e) there is no evidence of any prejudice, let alone unfair prejudice, which meets the threshold contemplated by the authorities; and

(f) the granting of leave will not unfairly prejudice the interests of shareholders as there is no residual value in the shares of Eratos Group.

1. In response to Ms Goss' request for an injunction restraining the administrator and the companies from taking any adverse action against her in connection with her 'eligible whistleblower status', the administrator did not consider such relief appropriate. Counsel submitted the administrator's position was that it was not within his purview, in his capacity as deed administrator or voluntary administrator, to take action against Ms Goss in respect of her alleged status.
2. Counsel for the administrator queried how Ms Goss' injunction would practically work, in circumstances where the DOCA fails and the companies are placed into liquidation. The administrator submitted that assuming he is appointed as liquidator, he will be required by the Act to undertake certain investigations into the companies' affairs, which may or may not be directed at Ms Goss.

1. Although in written submissions signed by counsel then retained by the administrator and filed in advance of the hearing, Ms Goss' standing to oppose the orders sought pursuant to s 444GA(1) was disputed by the administrator, at the hearing, it was accepted by different counsel at that time appearing on his behalf that either Ms Goss personally or Velo Group is a shareholder in Eratos Group and is therefore a member of the company as contemplated by s 444GA(2)(a).
2. To the extent necessary, I formally grant leave to Ms Goss pursuant to r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) to appear on behalf of Velo Group.
3. In addition, Ms Goss is a former employee of Eratos Aust with unpaid superannuation entitlements. As such, she is a creditor of Eratos Aust and has standing pursuant to s 444GA(2)(b).
4. In any case, as a former employee of Eratos Aust and therefore as an 'eligible whistleblower' falling within the definition of that expression in s 1317AAA(1) of the Act, Ms Goss is an 'interested person' as that expression is used in s 444GA(2)(c).

J.2 Ms Goss' evidence and 'eligible whistleblower' status

1. Ms Goss was previously employed by Eratos Aust in a managerial capacity. Her husband was also employed by that company.
2. On around 8 September 2024, Ms Goss made protected disclosures under Part 9.4AAA of the Act to the Director, Mr Chung. On 9 September 2024, Mr Chung emailed Ms Goss confirming that he will be treating her report as an 'internal whistleblower case at Eratos'. On 11 September 2024, Mr Chung requested further information from Ms Goss concerning the Former Director, Mr Taitoko, and his activities.
3. On 13 September 2025, 5 days after disclosures were made by Ms Goss, she was dismissed from her employment with Eratos Aust.
4. On 17 September 2024, Ms Goss filed a Fair Work Commission General Protections claim.
5. On 7 November 2024, Ms Goss was issued a certificate pursuant to s 368 of the Fair Work Act 2009 (Cth).
6. Ms Goss has given evidence that she is an eligible whistleblower under the Fair Work Act 2009 (Cth).
7. I accept the submission by Ms Goss that the administrator is aware of her status as an 'eligible whistleblower' through the Fair Work Commission Certificate and as a result of his attendance at the Fair Work Commission hearing.
8. Having regard to Ms Goss' evidence and submissions, I find that Ms Goss satisfies the relevant legislative requirements so as to fall within the 'eligible whistleblower' definition in s 1317AAA of the Act, specifically sub-paragraph (b), given she was a former employee.

1. Ms Goss submits that in her capacity as a member of Eratos Group she has been unfairly prejudiced for reasons including:

(a) the decision of the Director to place the company into administration followed closely upon the whistleblower disclosure she made to that director and to ASIC;

(b) the DOCA provides ongoing status as shareholders for 20 of the 23 shareholders in Eratos Group but not for her shareholding and not for the shareholding of two other persons, and is therefore discriminatory in its effect so far as her shares are concerned; and

(c) the DOCA was only passed by the meeting of creditors because the administrator voted in favour of it. It was opposed by a majority in value of the creditors. In addition to the ATO, Ms Goss and her husband opposed the resolution but they were not recorded as having done so.

1. Ms Goss contends the entry by the companies into administration and the manner in which the second creditors meeting was conducted and the terms of the DOCA were because of her conduct as a whistleblower.
2. Ms Goss submits that her and her husband's superannuation entitlements were omitted from the creditor documentation, despite both of them completing the administrator's employee claim forms.
3. Ms Goss submits that the Eratos ESOP program was omitted from the company's financial reports presented to creditors and from the administrator's affidavit filed in September 2025, with the consequence that the Court and creditors did not receive complete information necessary for informed decision making.
4. Ms Goss submits that despite the administrator being aware of her whistleblower status, that he and Mr Chung have targeted her family's financial interests through:

(a) complete elimination of her shareholding without consideration;

(b) exclusion of her 50 vested ESOP options from all creditor documentation;

(c) failure to disclose Ms Goss and her husband's superannuation priority creditor claims; and

(d) denial of statutory information access rights to inspect the share register of Eratos Group as provided for in s 173 of the Act, despite repeated requests to do so by Ms Goss from February 2025.

1. Ms Goss submits the denial of access to the share register has materially impaired her ability to prepare evidence, including her ability to verify the complete shareholding structure, identify all affected shareholders, and determine whether others were similarly concealed from DOCA documentation.
2. Ms Goss submits this pattern of denying statutory information access rights and eliminating priority claims demonstrates systematic concealment targeting the whistleblower. She submits the administrator has concealed her 46 shares, her 50 vested ESOP options, her superannuation priority claims and all other vested ESOP options from the creditors.

1. The issues raised by Ms Goss include matters relating to the appointment of the administrator as deed administrator, the information included in the Administrator's Report to creditors, the conduct of the second creditors' meeting, including the exercise by the administrator of his casting vote, the DOCA and its provisions and, more recently, the appointment of Mr Dixon as liquidator.
2. It is necessary to say something about the legislative scheme relevant to these events and to direct particular attention to s 444GA and Part 9.4AAA of the Act.
3. In light of the liquidation of the two companies following the hearing, and having regard to the injunctive relief sought by Ms Goss, it is relevant to note the power to remove a liquidator in s 90-15 of Schedule 2 - Insolvency Practice Schedule (Corporations) to the Act ('IPSC').

1. Administrators are required to prepare Administrator reports pursuant to r 75-‍225 of the Insolvency Practice Rules, which are to accompany notice of a meeting convened under s 439A of the Act.
2. The Administrator's report is intended to provide information to assist the creditors to determine the future of the company, or, in this case, the companies, to whom the report relates. The Administrator is required to report upon the Administrator's investigation of the business, property, affairs and financial circumstances of the companies and to express the Administrator's opinion about each of the following matters (among other things):

(i) whether it would be in the interests of the company's creditors for the company to execute a deed of company arrangement;

(ii) whether it would be in the creditors' interest for the administration to end;

(iii) whether it would be in the creditors' interest for the company to be wound up;

(iv) the reasons for the opinions referred to in subparagraph (i) to (iii); and

(v) such other information known to the administrator as will enable the creditors to make an informed decision about each matter covered by subparagraph (i), (ii) or (iii).

1. Because of the limited time available, the investigation undertaken by an Administrator is typically less comprehensive than an investigation into the affairs of a company by a liquidator.

1. The purpose of the second creditors' meeting is to determine the future of the company. The Act provides the creditors with three options. The first, that the company execute a deed of company arrangement (s 439C(a)); the second, that the administration ends and the affairs of the company be returned to the directors (s 439C(b)); and the third, that the company be wound up (s 439C(c)).
2. Rule 75-115(3) of the Insolvency Practice Rules provides that if no result is reached by a majority of creditors in number and in value voting in favour of or against a resolution at the second creditors' meeting, including a resolution that the company execute a deed of company arrangement, the person presiding at the meeting, in this case, the administrator, may exercise a casting vote either in favour of or against the resolution or may decide not to do so in which case the resolution is not passed.
3. The Court may terminate a deed of company arrangement in a wide variety of circumstances, including if the Administrator has not undertaken proper inquiries or if insufficient information was provided to the Administrator in connection with those inquiries. Section 445D(1) of the Act provides the Court may make an order terminating the deed of company arrangement for reasons that include the Court being satisfied:

(a) that information about the company's business, property, affairs or financial circumstances was false or misleading and could reasonably be expected to be material to the creditors in deciding whether to vote in favour of the resolution that the company execute the deed (s 445D(1)(a)); or

(b) there was an omission from a document that accompanied the notice of the meeting at which the resolution was passed, such as from the Administrator's report, and the omission can reasonably be expected to have been material to the creditors deciding to pass a resolution in favour of the deed (s 445D(1)(c)).

1. Section 445D(1)(f) provides that the Court may terminate a deed of company arrangement if the deed or a provision of it is, an act or omission done or made under the deed was, or an act or omission proposed to be done or made would be:

(i) oppressive or unfairly prejudicial to, or unfairly discriminatory against, one or more such creditors; or

(ii) contrary to the interests of the creditors of the company as a whole ...

1. In Project Sea Dragon Pty Ltd v Canstruct Pty Ltd,[1] Jackman J, with whom O'Callaghan and McElwaine JJ agreed, considered whether a deed of company arrangement should be terminated under s 445D(1)(f) in circumstances where one creditor was to be paid about $0.10 in the dollar under the deed, whereas all other unrelated arms-length creditors were to be paid in full.[2] It was held that the lack of a valid justification for discrimination against a particular creditor was capable in itself of constituting unfair prejudice or unfair discrimination, even if there is no realistic prospect of that creditor being better off in a winding up than under the deed.[3]

1. Pursuant to ss 437A(1)(a) and (b) of the Act, upon administration, the Administrator assumes control of the company's business, property and affairs and may carry on the business and manage the property and affairs.
2. The power to carry on the business of the company must be exercised by the Administrator for the purpose of giving effect to the object of Part 5.3A of the Act. Namely, to maximise the chances of the company continuing in existence, or, if that is not possible, to achieve a better return for the company's creditors and members than would result from an immediate winding up.[4]
3. An Administrator of a company under administration is personally liable under s 443A(1) of the Act for debts they incur in the performance of their functions for services rendered, goods bought, property hired or leased, the repayment of money borrowed and interest and borrowing costs.
4. Administrators are entitled to be indemnified out of the property of the company (other than certain retention of title property) for, among other things, debts for which the Administrator is liable under Subdivision A of Division 9 of Part 5.3A.[5]

1. As Craig J observed in Re 2362 1653 825 Pty Ltd (subject to deed of company arrangement) formerly known as Kester Black Pty Ltd,[6] the principles on an application pursuant to s 444GA are well settled.[7] The Court of Appeal of the Supreme Court of Western Australia identified the applicable criterion in Kipoi Holdings Mauritius Ltd v Kirman (as joint and several admins of Tiger Resources Ltd) (subject to deed of company arrangement) (No 4),[8] as follows:[9]

[287] The key consideration is that posed by s 444GA(3). The court must be satisfied that the proposed transfer would not 'unfairly prejudice' the interests of members of the company. That is not the only consideration. Once the court is satisfied that the transfer would not unfairly prejudice the interests of members of the company there is a residual discretion as to whether or not to grant leave to a deed administrator to transfer shares in the company. In that respect s 444GA(3) provides for a pre-condition to the grant of leave under s 444GA(1)(b). Where the discretion is enlivened it falls to be exercised having due regard to the object of pt 5.3A as set out in s 435A.

[288] The following propositions are generally accepted in relation to an application for leave to transfer shares under s 444GA:

1. The interests that are required to be taken into account are those of the members generally not just the members whose shares it is desired to transfer.
2. The section is directed to the interests of members in their capacity as members rather than as creditors or some other capacity.
3. The requirement that the transfer not unfairly prejudice the interests of members directs the court to consider the impact of compulsory transfer on members where there may be some residual value in the company.
4. The question of unfairness only arises if prejudice is established. If the company has no residual value to the members - such that the shares have no value - and the members are unlikely to receive any distribution in an immediate winding up, it is difficult to see how, ordinarily, the members could suffer any prejudice, let alone prejudice that could be described as unfair. ...

...

1. While there is an evidentiary onus on the members to raise any consideration telling against the exercise of the discretion, the ultimate onus of satisfying the court that the discretion should be exercised remains on the deed administrator. This requires the deed administrator to satisfy the court that the transfer would not unfairly prejudice the interests of members of the company.

[289] The observations of White J in Re Diverse Barrel Solutions Pty Ltd provide useful guidance in considering an application for leave pursuant to s 444GA(1):

Whether or not 'unfair prejudice' will result from a transfer of the shares is to be determined having regard to all the circumstances of the case and to the policy of the legislation. Relevant matters would seem to include whether the shares have any residual value which may be lost to the existing shareholders if the leave is granted; whether there is a prospect of the shares obtaining some value within a reasonable time; the steps or measures necessary before the prospect of the shares attaining some value may be realised; and the attitude of the existing shareholders to providing the means by which the shares may obtain some value or by which the company may continue in existence. A relevant comparison will be between the position of the shareholders if the proposal does not proceed and their position if leave to transfer shares is granted.

[290] The fact that shares are to be transferred without compensation is not sufficient, of itself, to establish unfair prejudice. ... There would not ordinarily be any prejudice, or at least no prejudice that has the requisite quality of being 'unfairly' prejudicial, if the shares to be transferred would receive no distribution in the event of a liquidation as the only realistic alternative to the proposed transfer.

[291] An assessment that there is no residual value in the shares, and there would be no return to members in an immediate winding up, might not, in every case, be sufficient to allay concerns about unfair prejudice to members. There might, for example, be some cases - perhaps rare - where there is a discernible potential benefit to members from further investigation being carried out by a liquidator. There was no suggestion that the present appeal involved such a case.

...

[297] The 'interests of members' of the company is concerned with members generally rather than an individual member. That is not to say that, in a particular case, the attitude of an individual member might not be relevant to evaluating the 'interests of members'. Section 444GA(3) is concerned with whether a proposed share transfer will 'unfairly prejudice' the interests of members. It might be relevant, in a particular case, that the prejudice suffered by one or more members is not unfair prejudice because those members consent to the proposed transfer. Observations made by Martin CJ in Weaver v Noble Resources Ltd may be seen as consistent with that possibility, as is s 444GA(1)(a). More generally, so far as the alternate object in s 435A(2) focuses on a better return for the company's creditors and members than would result from an immediate winding up, it is plain that the concern of pt 5.3A is the interests of the members as a whole.

1. The administrator did not refer in his written submissions to the decision in Kipoi. His written submissions placed reliance on decisions concerning s 444GA(3), the focus of which was upon whether or not the shares had no value and that there would be no distribution in the event of a liquidation.
2. In one of the decisions referred to by the administrator, IMO Hills Ltd,[10] Black J made the following observations concerning s 444GA(3):[11]

The case law establishes that the test to be applied under this section is concerned with "unfair prejudice" rather than any prejudice to the interests of relevant shareholders ... The statutory test requires the Court to consider the circumstances of the case and the policy of the legislation, as summarised in s 435A of the Act ... The transfer of shares without compensation does not, of itself, establish unfair prejudice ... The statutory test generally focuses on whether there would be any residual value in the shares if the relevant company was to proceed in liquidation, at least where that is the likely or necessary consequence of the transfer of shares not being approved ... Ordinarily, there will be no "unfair prejudice" if the shares have no value, and there would be no distribution in the event of a liquidation, which is the only realistic alternative to the proposed transfer ...

1. Reference was made by the administrator to the decision in Weaver v Noble Resources Ltd,[12] to which the Court of Appeal referred to in Kipoi. Weaver includes a detailed review by Martin CJ of the explanatory materials and the legislative background to s 444GA.
2. As noted by the administrator, the decision in Weaver has been cited with approval in later cases, including recently in this Court by Waller J in Re Covaler Pty Ltd (subject to a deed of company arrangement),[13] in the Federal Court of Australia by Moshinsky J in Dunn, Re Centrex Ltd (subject to deed of company arrangement),[14] and by Beach J in Clubb (deed administrator), Re Toys 'R' Us ANZ Ltd (subject to deed of company arrangement).[15]
3. In Toys R Us, the deed provided that:[16]

unless the Court determines that the Options are compromised by this Deed, the Deed Administrators will in accordance with the terms of the s 444GA Orders transfer all of the Options in Toys ANZ to the Proponent or its nominee ...

s 444GA contains no reference to options. It is limited to "shares". Further, there is no useful definition of "shares" in s 9. Now there is a useful definition of "securities" (see ss 9 and 92), but s 444GA uses the concepts of "shares" and "members" rather than "securities" or "holders of securities" respectively. And query in any event what would be embraced by "securities" in terms of options or analogous instruments.

1. The originating process in Toys R Us contemplated an order being made pursuant to s 447A that Part 5.3A is to operate in relation to the company as if the reference to 'shares' in s 444GA(1) included the 'options' referred to in the deed of company arrangement under consideration.[18] Justice Beach considered that the deed treated the option holders as creditors and extinguished their claims.[19] His Honour found that if it did not, that s 447A could have been used to modify the deed to deal with them.[20]
2. His Honour continued:[21]

[102] But if that latter possibility be the case, I see no good reason why s 477A could not be used to modify ss 444GA(1) and (3) in the terms indicated to deal with the options and analogous instruments, being the third way that I identified at the outset of these reasons. There is no good reason for s 447A not to operate to achieve directly what could be done indirectly in any event.

[103] And there is little doubt that such an exercise of power is consonant with the objectives set out in s 435A as applied to the Company.

...

[106] Generally, in my view it is appropriate to utilise s 447A to modify s 444GA as I have indicated to deal with the options and analogous instruments. But much of this could have been addressed under the DOCA if that is not already the case.

1. The statutory framework and legislative history of Part 9.4AAA were discussed in ASIC v TerraCom Ltd (No 3),[22] to which Ms Goss referred in her further written submissions filed 25 November 2025. As noted by Jackman J in TerraCom:[23]

[17] The whistleblower provisions of the Act were amended by the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Cth). The scope of the amendments was summarised in Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132; (2013) 413 ALR 227 at [15] (Moshinsky, Abraham and Raper JJ) as follows:

These new provisions effected material changes which included, without being exhaustive: (1) the widening of the scope of what disclosures qualify for protection: s 1317AA; (2) orders for compensation can now be made without any contravention of the offence provision being established: s 1317AD; (3) it is now sufficient to establish that detrimental conduct occurred because the wrongdoer "believes or suspects" that the whistleblower or any other person "made, may have made, proposes to make or could make a disclosure", rather than needing to establish that the conduct occurred because of the disclosure: s 1317AC(1)(c); accordingly, the whistleblower need not have made a disclosure before the detrimental conduct occurred, but rather the detrimental conduct may have occurred because the wrongdoer believes or suspects the whistleblower "may have made, proposes to make or could make" a disclosure; (4) the burden of proof applicable to compensation orders has been modified such that the whistleblower need only adduce evidence that suggests a "reasonable possibility" that the detrimental conduct occurred, at which point the wrongdoer assumes an onus to negative the claim: s 1317AD(2B); and (5) failure to comply with s 1312AC gives rise to civil penalties where previously non‑compliance constituted an offence (see s 1311(1)) (as it still does) but did not give rise to a civil penalty.

[18] The Revised Explanatory Memorandum (REM) provided the following context for the Bill:

1.3 Often [corporate] wrongdoing only comes to light because of individuals who are prepared to disclose it, sometimes at great personal and financial risk.

1.4 To reduce these risks and encourage disclosure of wrongdoing, Australia and many other countries have statutory whistleblower regimes with legally enforceable protections for people who make disclosures. These regimes recognise the critical role whistleblowing can play in the early detection and prosecution of misconduct in businesses... The existence of strong statutory protections to encourage whistleblowing can improve compliance with the law and promote a more ethical culture because individuals know there is a higher likelihood that misconduct will be reported.

[19] The REM described the purpose of the amendments as being "so that a single, strengthened whistleblower protection regime covers the corporate, financial and credit sectors". At [1.7], the REM described the existing regime as "a confusing web for whistleblowers to navigate" and referred at [1.9] to the prospect that "[w]hile existing protections remain inadequate or unclear, it is likely that whistleblowers will continue to be discouraged from disclosing information about wrongdoing". In relation to the increased penalties, the REM at [2.104] noted that "These penalties reflect the seriousness of conduct that victimises a whistleblower".

1. Part 9.4AAA of the Act is titled 'Protection for whistleblowers'. Section 1317AAA defines who is an 'eligible whistleblower'. The definition includes:

Meaning of eligible whistleblower

An individual is an eligible whistleblower in relation to a regulated entity if the individual is, or has been, any of the following:

(a) an officer of the regulated entity;

(b) an employee of the regulated entity;

(g) a relative of an individual referred to in any of paragraphs (a) to (f);

(h) a dependant of an individual referred to in any of paragraphs (a) to (f), or of such an individual's spouse;

(1) Each of the following is an eligible recipient in relation to a regulated entity that is a body corporate:

(a) an officer or senior manager of the body corporate or a related body corporate;

(2) A disclosure of information by an individual (the discloser) qualifies for protection under this Part if:

(a) the discloser is an eligible whistleblower in relation to a regulated entity; and

(b) the disclosure is made to an eligible recipient in relation to the regulated entity; and

(c) subsection (4) or (5) applies to the disclosure.

(4) This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:

(a) the regulated entity; or

(b) if the regulated entity is a body corporate - a related body corporate of the regulated entity.

Disclosure that qualifies for protection not actionable etc.

(1) If a person makes a disclosure that qualifies for protection under this Part:

(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure;

1. Section 1317AD sets out the circumstances in which an order for compensation and other remedies under s 1317AE may be made. Relevantly, it states:

(1) A court may make an order under section 1317AE in relation to a person (the first person) if:

(a) the first person engages in conduct (detrimental conduct) that:

(i) causes any detriment to another person (the second person); or

(ii) constitutes the making of a threat to cause any such detriment to another person (the second person); and

(b) when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and

(c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.

...

(2B) In proceedings where a person seeks an order under section 1317AE in relation to another person:

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:

(i) if subsection (1) of this section applies - paragraph (1)(a); or

(ii) if subsection (2) of this section applies - paragraph (1)(a), as mentioned in paragraph (2)(b); or

(iii) if subsection (2A) of this section applies - paragraphs (2A)(a) and (d); and

(b) if that onus is discharged - the other person bears the onus of proving that the claim is not made out.

Threats

(3) For the purposes of this section, a threat may be:

(a) express or implied; or

(b) conditional or unconditional.

(4) In proceedings for the purposes of section 1317AE, it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

1. 'Detriment' is given an inclusive definition in s 1317ADA. That section provides:

Meaning of detriment

In sections 1317AC and 1317AD, detriment includes (without limitation) any of the following:

(a) dismissal of an employee;

(b) injury of an employee in his or her employment;

(c) alteration of an employee's position or duties to his or her disadvantage;

(d) discrimination between an employee and other employees of the same employer;

(e) harassment or intimidation of a person;

(f) harm or injury to a person, including psychological harm;

(g) damage to a person's property;

(h) damage to a person's reputation;

(i) damage to a person's business or financial position;

(j) any other damage to a person.

1. The orders that the Court may make for contravention of s 1317AD are set out in s 1317AE. They include an order for compensation for loss, damage or injury suffered as a result of conduct (s 1317AE(1)(a)) and 'an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct' (s 1317AE(1)(c)) and 'any other order the court thinks appropriate' (s 1317AE(1)(g)).

K.6 The power to order that a person cease to be an external administrator

1. Division 90 of IPSC is titled 'Review of the external administration of a company'. Section 90-15 includes the following:

90-15 Court may make orders in relation to external administration

Court may make orders

(1) The Court may make such orders as it thinks fit in relation to the external administration of a company.

(2) The Court may exercise the power under subsection (1):

(a) on its own initiative, during proceedings before the Court; or

(b) on application under section 90-20.

Examples of orders that may be made

(3) Without limiting subsection (1), those orders may include any one or more of the following:

(a) an order determining any question arising in the external administration of the company;

(b) an order that a person cease to be the external administrator of the company;

(c) an order that another registered liquidator be appointed as the external administrator of the company;

...

Section does not limit Court's powers

(7) This section does not limit the Court's powers under any other provision of this Act, or under any other law.

1. In the matter of Re FW Projects Pty Ltd (in liq),[24] Black J discussed the principles to be applied on an application for the removal of a liquidator. His Honour said:[25]

[86] The matters relevant to an application for removal of a liquidator include not only whether that course would be for the benefit of the liquidation, and the body of persons interested in it, but also the need for confidence in the integrity, objectivity and impartiality of the winding up. In Multi-Core Aerators Ltd v Dye [1999] VSC 205 at [48]; [1999] VSC 205; (1999) 17 ACLC 1172, which was quoted by Bergin CJ in Eq in SingTel Optus Pty Ltd v Weston [2012] NSWSC 674; (2012) 90 ACSR 225, although held not to be applicable in that case, Warren J (as her Honour then was) noted that "rancour" between the parties would not be sufficient to require removal of a liquidator, particularly if hostility had emanated from the party seeking the removal, rather than from the liquidator, where removal on that basis "would provide a creditor with an opportunity to manipulate the liquidation of the company." Nonetheless, I proceed on the basis that a loss of confidence based on reasonable grounds by the creditors may, although it will not necessarily, justify removal of a liquidator: Re St Gregory's Armenian School (in liq) [2012] NSWSC 1215; (2012) 92 ACSR 588 at [30].

...

[88] In Re St Gregory's Armenian School (in liq) above Brereton J referred to AMP Music Box Enterprises Ltd v Hoffman above and SingTel Optus Pty Ltd v Weston above at [164] and observed (at [24]) that the onus of showing cause for removal of a liquidator is not "lightly discharged" ... His Honour also referred (at [25]) to the proposition, well established by the several authorities noted by his Honour, that an order for removal will only be made if it is demonstrated that it would be for the better conduct of the liquidation or "to the general advantage of persons interested in the winding up" or "in the best interests of the liquidation".

...

[100] In considering these matters, I recognise that a liquidator must be independent of the company, its directors and shareholders and individual creditors and must act impartially in the discharge of his or her duties and responsibilities: Re Allebart Pty Ltd (in liq) [1971] 1 NSWLR 24 at 30; Bovis Lend Lease Pty Ltd v Wily [2003] NSWSC 467; (2003) 45 ACSR 612 at [123]; Re ACN 151 726 224 Pty Ltd (in liq) previously Ridley Capital Holdings Pty Ltd above at [51]; Re Bellafountain Pty Ltd [2017] NSWSC 391; Re Ji Woo International Education Centre Pty Ltd [2019] NSWSC 93; (2019) 134 ACSR 448 at [39]. I also recognise that a prior involvement with a company in liquidation does not necessarily prevent a person's appointment as liquidator, if that involvement is not likely to impede or inhibit him or her from acting impartially in the interests of all creditors, or give rise to a reasonable apprehension that he or she might be so inhibited or impeded: Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230 at 234; 12 ACLC 701; Re St George Builders Hardware Pty Ltd (1995) 18 ACSR 451 at 452; 13 ACLC 1801. The Plaintiffs also referred to the observations of Hodgson CJ in Eq (as his Honour then was) in Unifor Office Systems Aust Pty Ltd v Brewer Partnership Pty Ltd [1999] NSWSC 137; (1999) 17 ACLC 642, expressing a general preference that investigations into a company's affairs should be undertaken by a person independent of the directors, and seeks to extend that proposition to a statement that the liquidators should not be chosen by directors of the company. There is, of course, no general practice or principle that the liquidators initially appointed by directors in a creditors' voluntary winding up cannot continue as liquidators of the company.

1. The administrator's application must be dismissed. There are four reasons why that is the case:

(a) The first reason is because the administrator has failed to prove the shares in the companies have no value and that the members are unlikely to receive any distribution in a winding up.

(b) The second reason is that there is a discernible potential benefit to members from further investigation being carried out by a liquidator.

(c) The third reason is that the proposed transfer order will be unfairly prejudicial to members, in particular to Ms Goss.

(d) The fourth reason is that to make the orders sought would contravene s 1317AB(1)(b) of the Act.

1. Adopting the conventional approach to s 444GA(3), an approach that focuses on the shares in the companies having no value, I am not persuaded the administrator has shown that is the case concerning Eratos Group.
2. The information available to the creditors at the second meeting as reported by the administrator and the administrator's assessment of the value of the shares in the companies suffered from a glaring omission. There was no reference to the $549,000 R&D tax rebate to which Eratos Group now claims to be entitled. Total assets of Eratos Group available in a liquidation scenario were estimated to be $112,893, including a $91,013 tax rebate receivable.
3. The administrator's assessment of the likely return to creditors in a liquidation described 'Recoveries pursuant to Part 5.7B of the Act' as 'unknown'. The effect of that entry was to attribute a nil value to any such assets. While a nil value was attributed, the Administrator's Report identified two potential assets, both of which may have substantial value.
4. The first such asset is the amount of $215,110, an amount the administrator described as being potential 'unreasonable director-related transactions'. These transactions relate to the Former Director. Although the investigative burden required to be assumed by an administrator falls short of what is required of a liquidator, it is not clear that the administrator's investigations as to the prospects of recovering that amount were particularly rigorous. No part of the sum of $215,110 was taken into account as an asset when assessing the likely return to creditors in a liquidation.
5. The second such asset arises from the administrator's assessment that it appeared that both companies traded while insolvent, which in the case of Eratos Group, may have been from at least 30 June 2022.
6. The administrator said there will likely be nothing to recover from directors should an insolvent trading claim be made out because searches of the Director and Former Director had not identified any real property in their names. This fact seems to have been important when the administrator determined to place no value on the potential chose in action against the directors for trading whilst insolvent.
7. Given the administrator's findings as to the existence of the $215,110 claim and the potential insolvent trading claims that the administrator assessed may be available, the least the administrator could have been expected to do, before evaluating the worth of these claims to determine whether the shares had value, is to undertake shareholder and director searches relating to both directors and to follow up those searches with index searches concerning any assets held by any companies of which the directors, or either of them, were actual or former shareholders or directors. In that way, a better informed assessment of the likely prospects of recovery could have been made. If the director undertook such searches, he did not refer to them or to the results of such searches in his report.
8. In both Centrex and Toys R Us, there was an independent expert report that opined that there was no residual value in the shares.[26] An independent expert assessment will not be required in all cases, however, in this case, the administrator did not undertake a balance sheet assessment of value which took into account all relevant available assets and which engaged in a meaningful way with the value of those assets to shareholders in the event of a liquidation.
9. As White J observed in Lewis, Re Diverse Barrel Solutions (subject to a deed of company arrangement),[27] when determining whether shares are of no value, it is relevant to consider whether there is the prospect of the shares obtaining value within a reasonable time.[28] What occurred with Eratos Group and Eratos Aust since the DOCA was executed provides evidence that at the time of execution and beyond, both the administrator and those closely involved in the companies appeared to have confidence in the future of the companies.
10. Eratos Aust traded for approximately 12 months in administration. Although it appears the company made a loss during that period and had a balance sheet deficiency as at 30 June 2025, existing shareholders who stood to benefit under the DOCA supported the trading by the administrator during this period via 'lines of credit'. It appears from the Eratos Aust Balance sheet exhibited to the Second Dixon Affidavit that the administrator's firm, HM Advisory, made substantial loans to support the business. Those actions are consistent with those persons considering that the companies had a future - a future within a reasonable time.
11. I infer from these facts that the DOCA proponent, the administrator and the providers of the lines of credit, each of whom I consider to be familiar with the business and affairs of the companies, believed there was a reasonable prospect of the shares having value, albeit on the basis of the DOCA. Taking these matters into account, I am not persuaded the shares did not have residual value within a reasonable time without the DOCA.
12. The second independent reason for refusing to make an order under s 444GA is that there is a discernible potential benefit to members from further investigation being carried out by the liquidator of the companies. That is the case in relation to the possible insolvent trading claims against the Director and the Former Director. It is also the case in relation to the potential claim against the Former Director for $215,110.
13. There appears to have been material non-disclosure by the Director, perhaps involving others, of the true position regarding the $549,000 R&D tax rebate. If that rebate is or was available to Eratos Group, how is it the case that Eratos Labs is the owner of intellectual property? If that is the case, is the true value of that intellectual property only $10,000? Are there intellectual property assets of value that were not disclosed to or identified by the administrator? If there were intellectual property assets of value held by Eratos Labs, were those assets made available to the companies trading in administration? All of these issues appear worthy of investigation by a liquidator.
14. It is the interests of the companies' members that these and other issues relating to the cause of the failure of the companies, including inappropriate director related expenditure and insolvent trading claims, are investigated and that, as appropriate, claims against persons who may be liable to the companies are pursued.
15. Turning to the third reason the application must be refused: to order the transfer would be unfairly prejudicial to the members, in particular to Ms Goss.
16. The analysis by Martin CJ in Weaver focussed on the extrinsic materials and on the legislative history of s 444GA, including the mischief the section was intended to address. That includes that in earlier cases, it had been held a deed administrator had no power to sell without the members' consent. The CAMAC report to which Martin CJ referred in Weaver, cautioned against the possibility of 'opportunistic creditors' acquiring shares based on insolvency assessed by reference to cash flow, rather than a comparison of total assets and liabilities.[29] The explanatory memorandum picked up that sentiment saying the section 'is intended to direct the court to consider the impact of the compulsory sale of shares where there may be some residual value in the company'.[30] While that statement is made in the explanatory memorandum, the starting point for the proper construction of s 444GA(3) is the text of the section.
17. Section 444GA(3) is widely cast. The onus is on the proponent for the order to show the transfer 'would not unfairly prejudice the interests of the members'. What will constitute an absence of unfair prejudice to the interests of members in any given case will be fact specific. To approach the question in a case such as the present from the premise that unless there is residual value in the company's shares no relevant prejudice will be present, is to approach the question through too narrow a lens.
18. In Hills Ltd, Black J noted the statutory test 'generally focuses on whether there would be any residual value in the shares if the relevant company was to proceed in liquidation', and that '[o]rdinarily, there will be no "unfair prejudice" if the shares have no value'. While the 'ordinary' case may focus on the residual value of the shares, the section does not say that a transfer order is to be made unless there is a residual value in the shares.
19. Section 444GA refers to the 'members' of the company. In other parts of the Act, for example in s 232 relating to oppressive conduct, reference is made to 'the members as a whole' and to conduct which is 'unfairly prejudicial' to a member. Although the Court of Appeal in Kipoi proceeded on the basis that s 444GA is concerned with the interests of the members generally, rather than an individual member, I consider the text sufficiently wide to require a consideration of the interests of a group of or class of members and, in appropriate circumstances, a consideration of whether the proposed transfer would be to unfairly prejudicial to a particular class of members or to a particular member.
20. The possibility that the attitude of a particular member may be relevant was left open in Kipoi. I consider that, in appropriate cases, whether an order granting leave to transfer shares will unfairly prejudice the interests of members of the company will require a consideration of the interests of a class of members or, in a case such as the present, the interests of an individual member.
21. Unfair prejudice to members may exist in circumstances where the order proposed discriminates between shareholders or classes of shareholders. What occurs in those circumstances is akin to discrimination against a particular creditor or class of creditors as discussed in Sea Dragon which, if it occurs, provides a proper basis for setting aside a DOCA pursuant to s 445D(1)(f)(i) of the Act. That is, even if there is no real prospect of the creditor being better off in a winding up under the DOCA.
22. That is not to say that in every case where a compulsory transfer order is sought discrimination between shareholders will itself show 'unfair prejudice.' By way of example, if called upon to consider whether the forfeiture of shares associated with Mr Taitoko in this case is unfairly prejudicial, different considerations than those concerning Ms Goss' shares may apply.
23. It is not all prejudice to a member to which s 444GA(3) is directed; it is directed to 'unfair' prejudice only. In this case, Ms Goss is not a person whose conduct is said to have caused or contributed to the financial woes of Eratos Aust or to those of its parent company. Ms Goss is not a person to whom the explanation in the DOCA about why certain existing shareholders are to have their existing shareholding forfeited has application. The events at the second creditors' meeting where, the issue having been raised, the administrator and the DOCA proponent, Mr Chung, conferred and, rather than provide a justification to the meeting for the proposed forfeiture, made a vague proposal to 'reconsider' the share cancellation and respond to Ms Goss within 21 days, bear out the absence of any rational and defensible basis to cancel Ms Goss' shares and to exclude her from participation in the DOCA going forward.
24. Just as in Sea Dragon, where there was found to be a lack of valid justification for discrimination against a particular creditor, so too is that the case here concerning discrimination against Ms Goss as a shareholder. To require the compulsory transfer of her shares would amount to unfair prejudice to her interests as a member of the company. Whether that is also the case concerning Mr Cebon's shares is unnecessary to determine, but there also appears no justification for requiring his shares to be forfeited.
25. The administrator has not established that the making of an order for the transfer of shares would not 'unfairly prejudice' the interests of the members of the company.
26. The fourth reason to refuse the administrator's application concerns Ms Goss' status as an eligible whistleblower and the associated detriment that will be suffered by her if the Court grants the administrator leave to transfer her shares.
27. In his written submissions filed prior to the hearing, the administrator did not address whether the Court should make the orders sought by Ms Goss in her affidavit, except to say that Ms Goss' 'alleged status as a "protected whistle blower"... [is] not material to the Court determining whether leave should be granted'. At the hearing, counsel for the administrator submitted that whether there had been a contravention of Part 9.4AAA was 'a question for a different day'.
28. I do not agree that in circumstances where Ms Goss sought relief in her 25 September 2025 affidavit, and where the parties adduced evidence and directed submissions as to her status as an eligible whistleblower, that these are issues for a 'different day'.
29. I am satisfied that Ms Goss is an 'eligible whistleblower' as defined in s 1317AAA who, in September 2024, made disclosure to Mr Chung, an 'eligible recipient'. I am satisfied that the disclosure by Ms Goss qualifies for protection under Part 9.4AAA by virtue of s 1317AA(2) having been satisfied.
30. To permit the administrator to obtain an order for the compulsory transfer of Ms Goss' shares in Eratos Group pursuant to s 444GA would be to permit the administrator to exercise a right within the meaning of s 1317AB(1)(b).
31. The scope of operation of s 1317AB(1)(b) is not limited to enforcement of a contractual or other remedy by the 'eligible recipient' of the information. The protection provided by s 1317AB(1)(b) exists if the right or remedy sought to be enforced or exercised is sought to be exercised 'on the basis of the disclosure'.
32. In this case, Ms Goss is proposed to be discriminated against in the DOCA in her capacity as a member of Eratos Group in circumstances where there is no basis provided to justify that outcome. Although she is a former rather than a current employee of Eratos Aust, it is no part of the explanation to say that the Target Shareholders should only be those currently employed. Even if that were to be the case, there is a live issue about whether Ms Goss' dismissal was unfair and as a result of her protected disclosure.
33. There being no other explanation for the proposed forfeiture of Ms Goss' shares via a compulsory share transfer order, I am satisfied that the right to obtain a transfer of those shares relying on s 444GA is a right that is sought to be exercised against Ms Goss 'on the basis of [her] disclosure'. To grant the administrator's application would be to permit a remedy to be enforced against Ms Goss on the basis of her protected disclosure. For that to occur would be contrary to s 1317AB(1)(b). For that separate reason, the administrator's application must be refused.

1. Section 1317AE(1)(c) expressly provides the Court may make an order for the purposes of subsections 1317AD(1), (2) and (2A) granting an injunction on such terms as the Court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct. It is worth noting that by virtue of s 90-15(7) of IPSC, the Court's powers to make orders in relation to the external administration of a company are not limited by that section.
2. As noted by Ms Goss in her further written submissions, s 1324(1) provides an independent basis for the Court to exercise jurisdiction to grant an injunction to restrain a person from engaging in conduct in contravention of the Act. Section 90-‍15(1) of IPSC provides the Court may make such orders as it thinks fit in relation to the external administration of a company. Subsection (2) of that section provides the Court may exercise such power on its own initiative, during proceedings before the Court. Subsection (3) provides examples of orders that may be made. Those orders include an order that a person cease to be the external administrator of the company.
3. Mr Dixon was appointed liquidator of the companies as recently as the afternoon of Friday, 21 November 2025. It is reasonable to proceed on the basis that he has not as yet undertaken substantive work in that capacity. As I indicated at the outset of these reasons, prior to being informed of Mr Dixon's appointment as liquidator, I was minded to make an order restraining the administrator, together with any director or employee of HM Advisory, from acting as liquidator should one or other or both of the companies be placed into liquidation.
4. I consider there is a 'reasonable possibility', as referred to in s 1317AD(2B)(a) of the Act, that by exercising his casting vote at the second creditors' meeting for the Director DOCA Proposal, that the administrator engaged in conduct that constitutes the making of a 'threat' to cause detriment to Ms Goss, as contemplated by s 1317AD(1)(a)(ii). That is because the Director DOCA Proposal upon adoption, followed by the s 444GA application made by the administrator, has the effect of eliminating Ms Goss' shareholding without compensation. For that to occur constitutes damage to Ms Goss' property, or alternatively, her business or financial position within the meaning of 'detriment' in s 1317ADA.
5. The administrator could have voted against the Director DOCA Proposal or he could have abstained from exercising his casting vote in favour of the Director DOCA Proposal pursuant to r 75-115(3) of the Insolvency Practice Rules. He did not. His vote was determinative concerning the DOCA.
6. The 'reasonable possibility' onus in s 1317AD(2B)(a) having been satisfied, it then falls to the administrator to show that the allegation made by Ms Goss is not made out. Relevantly here, to show that sub-paragraphs (b) and (c) of s 1317AD(1) are not made out. As mentioned above, the administrator did not address this issue. That is despite being on notice that Ms Goss relied on Part 9.4AAA and s 1317AD of the Act.
7. The matters to which I have referred, and also the unsatisfactory manner in which the administrator and the Director dealt with Ms Goss' complaint in the course of the second creditors' meeting, events which occurred before the casting vote was executed, provide an appropriate basis for the grant of injunctive relief sought by Ms Goss pursuant to s 1317AE(1)(c) restraining Mr Dixon and directors and employees of HM Advisory from acting as liquidator of the two companies.
8. The need for such orders becomes apparent when consideration is given to the duties of Mr Dixon as liquidator. As submitted expressly on his behalf during the hearing, as liquidator Mr Dixon is required by the Act to undertake investigations into the affairs of the companies which 'may or may not be directed at Ms Goss'. The administrator submitted if an injunction would be granted, directed to protecting Ms Goss in particular, that this would limit his ability to function and perform his role as liquidator. I agree.
9. In Re FW Projects, Black J observed that matters relevant to an application for the removal of a liquidator, which I treat as being equally applicable in the present circumstances, include the need for confidence in the integrity, objectivity and impartiality of the winding up. As noted by his Honour, an order for removal of a liquidator may be made where it is 'in the best interests of the liquidation'.
10. I consider the need for confidence in the integrity, objectivity and impartiality in the conduct of the winding up means that it is in the best interests of the liquidation to grant the injunctive relief sought by Ms Goss, which restrains Mr Dixon and those associated with him from acting as liquidator.
11. In this case, there has been a very close association between Mr Dixon and the director, Mr Chung, the proponent of the DOCA. There is nothing unusual about that fact in the context of the administration of a company. Ordinarily, such an association would not provide a proper basis, or perhaps even constitute a relevant consideration, for the removal or restraint of a liquidator from acting. In this case, there appears to be some additional factual circumstances about the apparent closeness of the relationship which call into question the ability of the Court to have confidence in the integrity, objectivity and impartiality of the conduct of the winding up, should Mr Dixon continue as liquidator. There are also matters which cause concern about the ability of Mr Dixon to act with objectivity and impartiality in the conduct of the winding up concerning Ms Goss, and in matters related to her, her husband and their company.
12. The circumstances in which the administrator's firm, HM Advisory, lent more than $500,000 to the companies and incurred fees of approximately $380,000 prior to 30 June 2025 were entirely unexplained in the evidence. That level of apparent funding of the company while it traded in administration prior to entry into the proposed creditors' trust of which Mr Dixon was proposed to be the administrator appears to me to be unusual. However, the extent of the apparent dealing and the unusual nature of what is recorded in the accounts demonstrates that it would be for the better conduct of the liquidation of the companies that a liquidator unrelated to Mr Dixon is appointed.
13. The proper discharge of his duties as liquidator would require Mr Dixon to investigate the affairs of the companies which, as counsel who appeared on his behalf at the hearing correctly said, 'may or may not be directed at Ms Goss'.
14. To recap, the resolution for the execution of the DOCA would not have been passed but for the exercise by Mr Dixon of his casting vote.
15. The Director DOCA Proposal called for Ms Goss' shares to be forfeited for no value. When she complained about that during the meeting, the administrator and the Director left the meeting to discuss the matter. When they returned, which was prior to the exercise by Mr Dixon of his casting vote, some vague and meaningless assurance was given by the Director that he would consider the issue of the forfeiture of Ms Goss' shares and report back within 21 days. That statement recorded in the minutes was an inappropriate and uncertain response to the issues raised by Ms Goss.
16. When Ms Goss opposed the transfer, the effective forfeiture of her shares, the administrator, funded by the Director took issue with Ms Goss' standing. The three separate and independent reasons why Ms Goss had standing discussed earlier in these reasons should have been known to the administrator. The 'standing' point is without merit. It should not have been taken. Counsel who appeared at the hearing acted appropriately when determining not to press the issue.
17. In circumstances where Mr Dixon, in his capacity as administrator, has propounded a claim for relief which I have found amounts to an attempt to exercise a right against Ms Goss and deprive her of her shares, an attempt which must be restrained under Part 9.4AAA, it is not appropriate that Mr Dixon continue as liquidator. To perform his role properly may require him to undertake inquiries and investigations 'directed at Ms Goss'. If any such inquiries and investigations are to be undertaken they should be undertaken by an independent liquidator. For that to occur is consistent with the need to ensure confidence in the performance of their functions by liquidators.
18. There is one further matter that is relevant to the grant of injunctive relief against Mr Dixon and his firm. In this case, there was what appears to be serious nondisclosure of a material asset by the Director at the time of the second creditors' meeting. I refer to the $549,000 R&D tax rebate. This non-disclosure had the effect that, unlike the position discussed in Centrex,[31] there was not full and accurate disclosure to shareholders prior to them voting on the relevant resolutions and prior to the exercise by the administrator of his casting vote. The evidence does not disclose when the administrator first learned of the existence of this asset. However, the belated disclosure of that asset by the administrator in September 2025 without an explanation as to when he first learned of the existence of the asset is unsatisfactory. It is important for the maintenance of public confidence that the investigation into these issues is conducted by a liquidator with no previous involvement.
19. Conscious of the need to ensure confidence in the integrity, objectivity and impartiality of the winding up, I will make orders restraining Mr Dixon and any director or employee of HM Advisory from acting as liquidator of the companies or either of them. As the appointment as liquidator is quite recent, I doubt that material costs will have been incurred so far in the conduct of the liquidation. As earlier mentioned I will grant liberty to apply to both companies, to Ms Goss, Mr Chung, the ATO, and to any other interested person affected by my orders, including any creditor or shareholder, should issues arise as to the appointment of a replacement liquidator.

(a) the relief claimed in the administrator's originating process filed 25 July 2025 is refused;

(b) Mr Dixon, and any director or employee of HM Advisory, is restrained from acting as liquidator of the companies, or either of them, pursuant to s 1317AE(1)(c) of the Act;

(c) I reserve liberty to both companies, to Ms Goss, Mr Chung, the ATO, and to any other interested person affected by these orders, including any creditor or shareholder of either company to apply on 7 days' notice including for directions in relation to the appointment of a replacement liquidator to those companies or either of them; and

(d) no order as to costs.

STEPHEN ROBERT DIXON IN HIS CAPACITY AS DEED ADMINISTRATOR OF ERATOS GROUP PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 633 153 787) AND ERATOS (AUST) PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 648 615 801)

ERATOS GROUP PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 633 153 787)

ERATOS (AUST) PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) (ACN 648 615 801)

[1] (2024) 305 FCR 465; [2024] FCAFC 141 ('Sea Dragon').

[4] Corporations Act 2001 (Cth) s 435A.

[5] Corporations Act 2001 (Cth) s 443D(a).

[6] [2025] VSC 705.

[8] [2024] WASCA 145.

[9] Ibid [287]-[291], [297] (Vaughan JA, Mitchell JA relevantly agreeing) (citations omitted) ('Kipoi'). See also at [149], where Buss P outlines some of the principles discussed by Vaughan JA.

[10] [2023] NSWSC 1308.

[11] Ibid [19] (citations omitted) ('Hills Ltd').

[12] (2010) 41 WAR 301; [2010] WASC 182 ('Weaver').

[13] [2025] VSC 473, [42]-[45].

[14] [2025] FCA 995, [47] ('Centrex').

[15] [2025] FCA 1135, [66] ('Toys R Us').

[22] (2025) 342 IR 453; [2025] FCA 1017, [17]-[22] ('TerraCom').

[24] [2019] NSWSC 892 ('Re FW Projects').

[26] See Dunn, Re Centrex Ltd (subject to deed of company arrangement) [2025] FCA 995, [2], [50] (Moshinsky J); Clubb (deed administrator), Re Toys 'R' Us ANZ Ltd (subject to deed of company arrangement) [2025] FCA 1135, [73] (Beach J).

[27] [2014] FCA 53.

[29] Weaver v Noble Resources Ltd (2010) 41 WAR 301; [2010] WASC 182, [67].

[31] Dunn, Re Centrex Ltd (subject to deed of company arrangement) [2025] FCA 995, [55] (Moshinsky J).