Re ABD Group Construction Pty Ltd (recs and mgrs apptd) (in liq) [2025] VSC 277 (8 May 2025)

(a) an amended originating process dated 10 December 2024;

(b) the affidavits of Mr Michael Carrafa (liquidator) dated: 22 November 2024; 5 December 2024; 31 January 2025; and 29 April 2025, together with their respective exhibits;

(c) the affidavits of Mr John Phillip Miller (solicitor) dated: 17 March 2025; 21 March 2025; and 29 April 2025, together with their respective exhibits;

(d) written submissions dated: 5 December 2024; 21 March 2025; and 2 April 2025; and

(e) an aide memoire of evidential references dated 30 April 2025.

1. Section 588FF(1) of the Act essentially states that where, on the application of a company's liquidator, a court is satisfied that a transaction of the company is voidable, the court may make various orders, including an order directing a person to pay to the company an amount equal to some or all of the money that the company has paid under the transaction. Subsection (3) provides:

(3) An application under subsection (1) may only be made:

(a) during the period beginning on the relation - back day and ending:

(i) 3 years after the relation - back day; or

(ii) 12 months after the first appointment of a liquidator in relation to the winding up of the company;

whichever is the later; or

(b) within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period.

1. The policy underpinning the three year limitation period found in s 588FF(3)(a) is to prevent 'inordinate delay' in commencing proceedings in respect of voidable transactions and the desirability of imposing upon liquidators a rigorous, but nonetheless reasonable, time limitation for taking action under the voidable transaction provisions.[2]
2. The legal principles concerning applications under s 588FF(3)(b) to extend the statutory limitation period are well-understood. The power to determine a 'longer period' confers a general discretion on the Court to mitigate, in an appropriate case, the rigours of the time limits imposed by s 588FF(3)(a).[3] The exercise of the discretion entails a balancing of the requirement of commercial certainty, on the part of those who had past dealings with the relevant company, against the countervailing interest of the creditors of the company.[4] In exercising its discretion, the Court must consider what is fair and just in all the circumstances,[5] which may be assessed by reference to:[6]

(a) an explanation for the delay in commencing the proceeding(s) within the limitation period;

(b) a preliminary view of the merits of the foreshadowed proceeding(s); and

(c) whether the likely actual prejudice resulting from the grant of an extension is sufficiently substantial to outweigh the case for granting an extension.

1. Liquidators seeking an extension of time will be required to adduce evidence of the reasons for their delay in commencing actions under s 588FF. Typically, such reasons raise the following matters: [7]

(a) the complexity of the affairs of the companies and the gross deficiencies in records;

(b) a lack of assets in the companies and hence lack of financial resources to fund an investigation;

(c) the need to obtain, and the time lag involved in obtaining, financial backing for the investigation;

(d) the impact of other proceedings that have already been commenced; and

(e) the conduct of s 596A public examinations for the purpose of obtaining further evidence.

1. In undertaking a preliminary view of the merits of the proposed proceeding(s), the Court will determine whether the proceeding(s) would be 'so devoid of prospects that it would be unfair, by granting an extension, to expose the other party to the continuing prospect of suit'.[8] However, it has been recognised that in some cases a preliminary inquiry into the merits may impose an unnecessary burden on both the liquidator and the Court, especially in a case where the circumstances appear to give rise to complex or disputed questions of fact and law and the evidence before the Court is 'manifestly incomplete.'[9] Further, where the liquidator's purpose in seeking the extension of time is simply to put himself or herself into a position where he/she can properly decide whether or not to bring proceedings, a preliminary inquiry into the merits of any proceeding may not ultimately be necessary.[10]
2. There are clear rationales for the enactment of limitation periods generally. They were identified by McHugh J in Brisbane South Regional Health Authority v Taylor ('Brisbane South')[11] as follows:[12]

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.

...

The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

1. The prejudice, referred to by McHugh J in Brisbane South does not depend on evidence demonstrating specific prejudice[13] but is a presumption of actual prejudice.[14] This 'presumptive prejudice' may exist without the defendants or anyone else being aware of it.[15] Facts which were once known may be forgotten, or their significance may no longer be appreciated.[16]
2. Relatedly, and in the particular context of s 588FF(3)(b), a public interest is also served by allowing persons who have had dealings with insolvent companies to conduct their commercial affairs with a degree of certainty about having past transactions unravelled.[17]
3. Although the absence of prejudice is important, it is not in itself decisive but rather one relevant matter to be taken into account in the exercise of discretion in s 588FF(3)(b).[18]
4. It is sometimes appropriate to examine the decision-making of the applicant for the extension of the limitation period. In Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) ('Buzzle')[19], Ipp JA (with whom Tobias and McColl JJA agreed) expressed the view that a deliberate decision to allow a statutory limitation period to expire would be a significant factor against the grant of leave, noting that any prejudice suffered in such circumstances, were the writ not extended, would be self-inflicted.[20] By contrast, in Clarecastle Pty Ltd (in liq),[21] Ward J found that while there was no deliberate decision by liquidators to allow the three year period to lapse without bringing particular voidable transaction claims,[22] there was a seemingly deliberate decision on the part of the liquidators not to pursue the investigations (for which an extension was sought) in a timely a fashion, such that any resulting prejudice might be self-inflicted.[23]
5. I will address the relevant considerations in greater detail by reference to the evidence.

1. The liquidators point to a number of compounding factors which have prevented them from commencing the voidable transaction proceedings within the three year limitation period.

Size and complexity of group companies' operations

1. I accept the liquidators' submission that the affairs of the group companies were substantial and complex. As previously mentioned, the group companies were organised in accordance with two distinct businesses. These comprised a commercial construction arm ('ABD Group') and a residential construction arm ('Marcus Group').
2. The structure within ABD Group was complicated with different entities performing discrete roles. For example, ABD Group Co was the primary trading company that entered into contracts and received revenue, whereas: ABD Plant & Equipment Pty Ltd (recs & mgrs apptd) (in liq) owned all the plant and equipment; ABD Management Pty Ltd (recs & mgrs apptd) (in liq) leased head office premises and met overheads, including rent, information technology and telecommunication costs; and ABD Personnel Pty Ltd (recs & mgrs apptd) (in liq) employed staff. Additionally, in the period 2018 to 2020, ABD Group undertook (but later abandoned) a restructure process, during which period a company named ABD Group Pty Ltd essentially performed the role of ABD Group Co by entering into contracts and receiving revenue.
3. I have already made reference to the substantial size of the group companies' operations. In the case of ABD Group, in the five years prior to the liquidators' appointment, the business had completed projects worth over half a billion dollars (exclusive of GST), whereas at the time of the liquidators' appointment in November 2021, there were two major construction projects underway with a combined contract value of over $235 million (exclusive of GST). ABD Group employed 72 staff and dealt with approximately 70 regular subcontractors. Consolidated and audited financial statements for ABD Group for the financial year ended 30 June 2020 (the last year that financial statements were prepared) reported: $147.3 million in annual revenue; $46.6 million in total assets; and $26.2 million in total liabilities.
4. The residential construction business undertaken by Marcus Group was operated by Marcus Group Co but utilised resources of ABD Group. In total, the business involved three entities and a trust.[24] At the time of the liquidators' appointment, Marcus Group was undertaking four multi-storey residential developments worth $86.4 million. In the five years prior to the appointment of the liquidators, Marcus Group had completed a number of residential developments worth over $110 million. Marcus Group employed 17 of its own staff and worked with around 60 regular sub-contractors. For the financial year ended 30 June 2020, the business recorded: $69.3 million in annual revenue; $9.7 million in total assets; and $5.3 million in total liabilities.
5. Subsequent investigations conducted by the liquidators have revealed that as at the date of their appointment on 26 November 2021, ABD Group Co itself had amassed over $184 million in liabilities, including $142.5 million owed to unsecured creditors, whereas Marcus Group Co had $67.4 million in liabilities, with $26.4 million owed to unsecured creditors. The liquidators' investigations also established that the group companies owed one another (and other related entities) tens of millions of dollars in intercompany loans.

1. The size and complexity of the affairs of the group companies has resulted in a substantial and complex liquidation process. Whilst the liquidators have performed routine work such as collecting books and records, identifying relevant property, attending construction sites, preparing statutory reports and dealing with creditors, I accept they have also faced significant and unique challenges in conducting the liquidations of the group companies which has contributed to the delay in pursuing potential voidable transaction claims. For example:

(a) the group companies' accounting software known as 'Cheops', a proprietary software package for the construction industry, has been difficult for the liquidators to operate and interrogate. Although the group companies' chief financial officer initially assisted the liquidators to better understand the system, he later ceased communicating with them and the liquidators and their staff were required to train themselves in the use of the system. They found reports generated by the system were inaccurate and required manual supplementation from bank statements;

(b) the electronic records of the group companies amount to approximately 1.7 terabytes of data, which include 760,000 emails. Despite the considerable volume of records, the liquidators' evidence is that the group companies' record keeping was inconsistent, vague, inaccurate or missing entirely. By way of example, following the aborted restructure of ABD Group, relevant commercial construction contracts were novated to or taken over by ABD Group Co, but such arrangements were not well-documented. Further, agreements with contracting parties did not always clearly identify the relevant ABD Group contracting entity, but rather referred to 'ABD' or 'ABD Group';

(c) while most unsecured trade creditors provided services in relation to multiple projects undertaken by ABD Group Co and Marcus Group Co, a large number of those creditors consolidated multiple debts when entering into repayment plans with ABD Group Co and/or Marcus Group Co. For the purpose of investigating potential voidable transactions, this has given rise to difficulties in identifying the debts in respect of which payments had been made and whether the payments were an integral part of a continuing business relationship as contemplated by s 588FA(3) of the Act;

(d) the liquidators have been diverted from investigating the group companies' affairs in order to deal with several Victorian Workcover Authority workplace injury proceedings and separate litigation in respect of defective building works. The proceedings have necessitated the liquidators dealing with extensive documentary requests which have been difficult and expensive to comply with, given the size and state of the group companies' books and records; and

(e) the liquidators have been required to consider around 178 proofs of debt lodged by creditors of the group companies.

1. In the face of these significant and complex challenges, the investigations of the liquidators have also been hampered by a lack of assets and funds.
2. At the time of the appointment of the liquidators, various group companies, including ABD Group Co and Marcus Group Co, held a facility with the National Bank of Australia Limited ('NAB'), under which almost $40 million was owed. The debt to NAB was guaranteed by each of the other group companies and the subject of first ranking registered security interests over all their present and after acquired personal property in favour of NAB. Shortly after the appointment of the liquidators, Messrs Matthew Caddy and Keith Crawford of Mcgrath Nicol were appointed as joint and several receivers and managers ('receivers and managers') of the asset-holding group companies, thereby depriving the liquidators of funds to perform investigations into the affairs of the group companies.
3. In March 2023, the liquidators commenced discussions with the Australian Securities and Investments Commission ('ASIC') over assetless administration funding which would have extended to the investigation of claims against related parties. However, it was only on 11 February 2025 (more than two months after the filing of this application) that the liquidators and ASIC reached agreement on the terms of the assetless administration funding. It was around this time that the liquidators entered into settlement discussions with Peach, Mr Luigi Aiello and Ms Sandra Aiello as related parties.
4. In the absence of funding to investigate potential recovery claims, the liquidators have nevertheless commenced and/or settled a limited number of voidable transaction claims prior to the limitation date. The evidence shows the liquidators commenced and/or settled four voidable transaction claims prior to filing this application and initiated a further 17 claims in the short period prior to the limitation date. This has been possible because the liquidators' legal representatives have been prepared to act on a conditional basis and through the application of limited funds generated from prior recoveries. Receipts and payment ledgers for the liquidation of ABD Group Co demonstrate limited recoveries from claims until early 2023 and the immediate application of recoveries to the liquidators' fees, legal costs and disbursements. In broad terms, between 9 December 2021 and 2 December 2024, the liquidators recovered approximately $592,000 from claims but made approximately $579,000 in payments of fees, costs and disbursements, leaving a net balance of just over $13,000 in recoveries. The receipt and payment ledgers demonstrate the hand-to-mouth nature of the recoveries to date. There is also evidence that the investigation and pursuit by the liquidators of other claims has resulted in some wasted costs in circumstances where the defendant was, or became, insolvent. Additionally, the limited recoveries received have been insufficient to enable the liquidators to undertake public examinations or to advance other material investigations into the affairs of the group companies.

Preliminary view of merits of proposed proceedings

1. I have reviewed the material relied upon by the liquidators which delineates the nature of the proposed claims and the potential defendants. The relevant evidence was usefully collated and organised in the aide memoire tendered by the liquidators at the hearing.
2. The 15 claims now proposed to be commenced by the liquidators in the event the extension of time is granted are summarised in the table below.

Quantum of transactions subject of proposed claim

1. There is material before the Court addressing the following matters relevant to the formulation of the proposed voidable transaction claims under s 588FF of the Act; particularly unfair preference claims under s 588FA of the Act:

(a) the existence of transactions between ABD Group Co and/or Marcus Group Co and the relevant affected persons for the purpose of s 588FA(1) of the Act;

(b) the status of the relevant affected persons as unsecured creditors of ABD Group Co and/or Marcus Group Co at the time of the transactions for the purpose of s 588FA(1) of the Act. For example, save for Wetspot Consolidated (Vic) Pty Ltd ('Wetspot'), none of the affected persons appear to have lodged security interests on the Personal Property Securities Register in respect of ABD Group Co or Marcus Group Co. A security interest registered by Wetspot in respect of ABD Group Co appears to be the last in time and is likely to fall behind a security interest granted to NAB in respect of all present and after acquired property. To the extent the secured debt owed to Wetspot is not reflected in the value of its security, the debt may be considered to be unsecured in accordance with s 588FA(2) of the Act;

(c) the payments resulted in the relevant affected persons receiving more from ABD Group Co and/or Marcus Group Co in respect of the unsecured debt than the affected persons would receive if the transaction were set aside and the creditor were to prove the debt in the winding up of the company for the purpose of s 588FA(1)(b) of the Act;

(d) the question of insolvency of ABD Group Co and Marcus Group Co at the time the transactions were entered into for the purposes of ss 588FC and 588FE(2) of the Act. I note in this regard that the liquidators have already undertaken preliminary insolvency analyses for both ABD Group Co and Marcus Group Co which suggest each entity was insolvent from as early as 30 June 2019 on the basis of: continuing losses; net asset deficiency; liquidity ratios below 1; an inability to raise further funds; various demands made and legal processes issued against the companies by creditors; and overdue taxation liabilities; and

(e) the entry into, or giving effect to, the transactions within the six month relation back period between 27 May 2021 to 26 November 2021, for the purposes of s 588FE(2) of the Act. With the exception of one of the affected persons, being Auscast Constructions Pty Ltd ('Auscast'), the relevant transactions occurred within the six month relation back period. In the case of Auscast, while a number of transactions occurred between it and each of ABD Group Co and Marcus Group Co during this six month period, a significant number of transactions with ABD Group Co predated this period but occurred during a time that Mr Raffaele Aiello was a director of Auscast. In the event the extension of time was granted, it will be necessary for the liquidators to undertake further investigations to ascertain whether such transactions may be characterised as voidable transactions other than unfair preferences, such as uncommercial transactions under of s 588FB (which are subject to a two year relation back period under s 588FE(3)) or related party transactions under s 588FE(4) (which are subject to a longer four year relation back period).

1. In the event an extension was granted, the liquidators will also need to consider whether the relevant transactions were an integral part of a continuing business relationship (for example, a running account) between ABD Group Co or Marcus Group Co and the relevant affected person, such that the transactions would together constitute a single transaction as contemplated by s 588FA(3) of the Act. This analysis may ultimately have the effect of reducing the potential quantum of the proposed claims.

1. Given the application is no longer opposed, there is no evidence of any specific prejudice to the affected persons in the event the relevant extension of time was granted. However, the liquidators concede that some 'presumptive prejudice' may arise in the sense that facts once known may now be forgotten or their significance not now appreciated.

1. As already noted, this application was made almost three years before the limitation date. Since the filing of the application, the liquidators have undertaken the necessary and detailed process of notifying the affected persons of this application and have had the benefit of further time to progress their investigations. I regard this additional period of time to be relevant both to the question of whether to grant an extension of the relevant limitation period pursuant to s 588FF(3)(b) of the Act and, in the event an extension were granted, the period of such an extension. The time between the filing of the application and the date by which the proposed proceedings are now sought to be commenced is around six months (i.e. five and a half months between the filing of the application and the time of these reasons, plus the additional two weeks sought by the liquidators in their proposed orders), resulting in a total delay of three and a half years.
2. The liquidators contend, and I accept, that the absence of funds has compounded the other difficulties and complexities they already faced in administering the liquidations of the group companies. I also accept that prior to the limitation date, the liquidators did not have sufficient funds to triage the 63 potential claims in contemplation at that time, let alone sufficient funds to properly assess their merits, prepare Court documents, assemble evidence and pay the necessary filing fees. Although the delay is considerable, the reasons proffered by the liquidators for the delay are cogent. It is a delay that is reasonable having regard to the relevant circumstances faced by the liquidators. The position can be contrasted with that before the Court In the matter of Cohalan & Mitchell Roofing Pty Ltd (in liq) ('Cohalan')[25] where: the delay was also long but insufficiently explained; the liquidation in question was not especially complex; and the proposed cause of action also relatively straightforward, both factually and legally.[26]
3. Further, I accept the submission that notwithstanding the challenges faced by the liquidators, including the lack of resources, the liquidators did not sit on their hands but were able to commence a limited number of recovery proceedings prior to the limitation date and resolve some of those matters. The liquidators have narrowed the initial list of 63 potential voidable transaction claims down to 15. During this process of refinement, the liquidators confronted issues concerning the reliability of underlying source documents, which has been a feature of the entire liquidation process.
4. There is no evidence of any deliberate decision on the part of the liquidators to allow the three year limitation period to expire or to delay their investigations for which an extension is now sought. To the contrary, the evidence suggests they have attempted to pursue enquiries into the group companies with appropriate dispatch in the context of assetless liquidations.
5. While there was delay in commencing this application for an extension of the limitation period under s 588FF(3)(a)(i) of the Act, and the application was only made five days prior to the limitation date, I consider that such delay is explicable having regard to the considerable challenges faced by the liquidators in administering the group companies, not the least of which was an absence of financial resources. The cost of preparing such an application and providing notice to the affected persons has no doubt been substantial. At the same time, the factors that have conspired to delay the commencement of the voidable transaction claims themselves have contributed to the delay in bringing this application for an extension.
6. In the result, I do not regard the question of delay in this case to militate heavily against the granting of the relief sought.
7. Turning to the relative merits of the proposed claims, in my view, having regard to the material before the Court, it appears at a preliminary level that the proposed voidable transaction claims have sufficient merit to warrant the liquidators continuing their investigations to ascertain whether to commence proceedings. At the very least, I do not regard any of the proposed claims to be so devoid of prospects that it would be unfair, by granting an extension, to expose the proposed defendants to the continuing prospect of litigation. Having regard to the number of transactions in question between the relevant affected persons and ABD Group Co and/or Marcus Group Co, to descend at this stage into a greater consideration of the merits of the proposed claims, including whether some of the transactions were an integral part of a continuing business relationship, would be unduly burdensome to both the liquidators and the Court.
8. I come then to the question of prejudice. As I have already stated, the liquidators originally sought an extension under s 588FF(3)(b) of the Act until 26 May 2026 but now seek a far more modest extension for a period of two weeks from the date of the Court's orders. That was a sensible concession given the lengthy period the liquidators originally proposed and the resulting prejudice the relevant affected persons would potentially suffer.
9. It is germane to the question of prejudice that only four of the affected persons (Cassello, OROS, LTE and Peach) made objection to the application. Of course, those affected persons no longer press any objection. The absence of opposition to the proceeding means there is no evidence of specific prejudice by any of the affected persons. However, I consider that a presumptive prejudice necessarily arises, particularly given the remaining affected persons do not have certainty in relation to past transactions which took place several years ago. That said, it seems unlikely there will be a significant impact on the ability of any of the affected persons to deal with a proceeding brought six months after the expiry of the limitation period. The confinement of an extension to a date two weeks after the making of the Court's orders would ameliorate any presumptive prejudice in this case.
10. It follows that the risk of prejudice to the affected persons is minimal and is outweighed by the interests of creditors in receiving a potential recovery from the proposed voidable transaction claims. Having regard to the significant value of the transactions the subject of the proposed claims (i.e. $23.2 million), creditors would, in my view, suffer greater prejudice if an extension of time were not granted.

1. Balancing the relevant considerations within the discretionary mix, I consider it is fair and just to grant the abridged period of extension now sought by the liquidators (being two weeks from the date of the Court's orders) to bring the proposed voidable transaction claims against the 12 affected persons. Appropriate orders will be made accordingly. The liquidators' costs of this application should be costs in the windings up of ABD Group Co and Marcus Group Co.
2. While I have ultimately come to the position that the liquidators' application for the extension of time under s 588FF(3)(b) of the Act should be granted, nothing in these reasons should be taken to generally endorse any practice of making an application for an extension immediately prior to the expiry of the three year limitation period imposed by s 588FF(3)(a)(i). I respectfully adopt the comments of Sifris J (as his Honour then was) in Cohalan to the effect that liquidators should be mindful of the limitation period when monitoring the pace of their investigations and should come to the Court at the earliest possible opportunity to seek the relevant extension of time.[27]

MICHAEL CARRAFA IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF ABD GROUP CONSTRUCTION PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 328 646), ABD GROUP PTY LTD (IN LIQUIDATION) (ACN 641 322 198), A.C.N. 109 588 589 PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 109 588 589), ABD GROUP HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 325 896), ABD MANAGEMENT PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 344 239), ABD PERSONNEL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 344 195), ABD PLANT & EQUIPMENT PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 344 220), COLLABORATIVE INVESTMENT HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 619 727 276), MARCUS GROUP HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 612 228 298) and MARCUS GROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 612 237 091)

PETER GOUNTZOS IN HIS CAPACITY AS JOINT AND SEVERAL LIQUIDATORS OF ABD GROUP CONSTRUCTION PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 328 646), ABD GROUP PTY LTD (IN LIQUIDATION) (ACN 641 322 198), A.C.N. 109 588 589 PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 109 588 589), ABD GROUP HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 325 896), ABD MANAGEMENT PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 344 239), ABD PERSONNEL PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 344 195), ABD PLANT & EQUIPMENT PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 611 344 220), COLLABORATIVE INVESTMENT HOLDINGS PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 619 727 276), MARCUS GROUP HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 612 228 298) and MARCUS GROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 612 237 091)

[1] ABD Group Construction Pty Ltd (recs & mgrs apptd) (in liq); ABD Group Pty Ltd (in liq); A.C.N. 109 588 589 Pty Ltd (recs & mgrs apptd) (in liq); ABD Group Holdings Pty Ltd (recs & mgrs apptd) (in liq); ABD Management Pty Ltd (recs & mgrs apptd) (in liq); ABD Personnel Pty Ltd (recs & mgrs apptd) (in liq); ABD Plant & Equipment Pty Ltd (recs & mgrs apptd) (in liq); Collaborative Investment Holdings Pty Ltd (recs & mgrs apptd) (in liq); Marcus Group Holdings Pty Ltd (in liq); and Marcus Group Pty Ltd (recs & mgrs apptd) (in liq).

[2] Farid Assaf, Brett Shields and Hilary Kincaid, Voidable Transactions in Company Insolvency (LexisNexis Butterworths, 2015) ('Voidable Transactions in Company Insolvency') [11.32], [11.36], referring to the Australian Law Reform Commission, General Insolvency Inquiry, Report No. 45 (the Harmer Report), Canberra, 1988 [688] and citing Green v Chiswell Furniture Pty Ltd (in liq) [1999] NSWSC 608 [14] (Austin J) ('Green v Chiswell') and other cases.

[3] BP Australia Ltd v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322, 356 (Spigelman CJ, with whom Mason P and Handley JA agreed) ('BP Australia'); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489, 506 ('Fortress Credit').

[4] See BP Australia 354; Fortress Credit 499; In the matter of Cohalan & Mitchell Roofing (in liquidation) [2020] VSC 222, [31]-[33] (Sifris J) ('Cohalan').

[5] BP Australia 357; Cohalan [32].

[6] See Green v Chiswell [15]; Francis v Bratovich [2008] WASC 242 [3]; Walker v CBA Corporate Services (NSW) Pty Ltd [2012] FCA 328; (2012) 88 ACSR 153, 161 (Nicholas J); Cohalan [32]; Parker, in the matter of Worldwide Specialty Property Services Pty Limited (in liq) v Worldwide Speciality Property Services Pty Limited (in liq) [2017] FCA 687 [15]-[16] (Lee J) ('Worldwide Specialty Property Services').

[7] Re Clarecastle Pty Ltd (in liq) [2011] NSWSC 857; (2011) 85 ACSR 260, 291 ('Clarecastle'); Worldwide Specialty Property Services [21]. See also Voidable Transactions in Company Insolvency [11.37].

[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ('Brisbane South').

[12] Ibid 552-3 (McHugh J), cited in Clarecastle 290; Cohalan [45].

[16] Ibid; New Cap Reinsurance Corp v Reaseguros Allianza SA [2004] NSWSC 787; (2004) 186 FLR 175, 191 (White J) ('New Cap').

[17] BP Australia 345-346; Cohalan [45].

[18] New Cap 188; BP Australia 358. See also Voidable Transactions in Company Insolvency [11.39].

[19] Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104.

[21] [2011] NSWSC 857; (2011) 85 ACSR 260, 292.

[24] Namely, Marcus Group Pty Ltd (recs & mgrs apptd) (in liq), Marcus Group Holdings Pty Ltd (in liq) and Leo Investment Holdings Pty Ltd (deregistered) as trustee for Leo Investment Holdings Trust.

[25] [2020] VSC 222.